## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1398

___________ Eunice Greaser, * * Plaintiff/Appellant, * * v. * * State of Missouri, Department of * Corrections; Dora Schriro; George * Lombardi; Sarah Schuette; Gerald * Higgins; Kelly Lock; Michael Groose; * Appeals from the United States Vernon Heath; Lawrence Bax; Cecil R. * District Court for the Riley; James Cregger, Bill Keeth; * Western District of Missouri. Robert Walling, * * Defendants/Appellees, * * Carl White, * * Defendant, * * Phillip Higgins, * * Defendant/Appellee. *

___________ No. 97-1405

___________ Eunice Greaser, * * Plaintiff/Appellee, *The HONORABLE MICHAEL J. DAVIS, Uni ted States District Judge for the 1 District of Minnesota, sitting by designation. -2- * v. * * State of Missouri, Department of * Corrections; Dora Schriro; George * Lombardi; Sarah Schuette; Gerald * Higgins; Kelly Lock; Michael Groose; * Vernon Heath; Lawrence Bax; Cecil R. * Riley; James Cregger, Bill Keeth, * * Defendants/Appellants, * * Robert Walling, * * Defendant, * * Carl White; Phillip Higgins, * * Defendants/Appellants. *

___________ Submitted: February 12, 1998

Filed: June 1, 1998

___________ Before WOLLMAN and HANSEN, Circuit Judges, and DAVIS, District Judge. 1

___________The Hon orable William A. Knox, United States Magistrate Judge for th e 2 Western District of Missouri, to whom the case was referred by consent of the parties pursuant to 28 U.S.C. § 636(c). Walling was apparently promoted to his previous rank approximately twent y 3 months after his demotion. -3- WOLLMAN, Circuit Judge. Euni ce Greaser appeals from the judgment entered by the district court on the 2 jury’ s verdict in favor of the Missouri Department of Corrections and variou s individually named employees of the Department (hereinafter referred to collectively as “the Department”) in her Title VII retaliation clai m. The Department cross-appeals, contending that the district court abused its discretion in denying costs pursuant to Fed. R. Civ. P. 54(d). In addition, the Department moves for revocation of Greaser’s i n forma pauperis status. We affirm.
I.
Greaser began working for the Missouri Department of Corrections in 1980

. A f ter serving as a correctional officer at the Renz Correctional Center for four years, Greaser left to care for her seriously ill hu sband. She returned to employment with the Depart ment

in 1986 as a correctional officer at the Central Missouri Correctiona l Center.
In 1990, Greaser was subjected to inappropriate comments made by a co

worker, Robert Walling. As a result of these comments, Greaser filed an interna l sexual harassment grievance against Walling. The Department investigated th e situati on and, having found reason to believe Greaser’s allegation, demoted Wallin g and transferred him to another correctional facility. 3-4-

After filing the grievance against Walling, Greaser continued to work for th e Depart ment

until 1995. During that time, Greaser sought various promotiona l opportunities within the Department. Al though she was a candidate for approximately thirty p ositions at twelve different correctional institutions and interviewed with approximately seventy Department officials regarding these positions, Greaser was not offered a promotion. As a result, Greaser began to suspect that various Departmen t offici als were retaliating against her because of her 1990 grievance and Walling’ s subsequent demotion. This su spicion was also based on Greaser’s belief that she was being mistreated by co-workers, supervisors, and Department officials. In light of this perceived retaliation, Greaser initiated this claim alleging that the De partment had retaliated against her in violation of Title VII of the Civil Rights Act of 19 64. At trial, Greaser testified that she believed that she was denied promotions, givenunfavorable duty assignments, and belittled and ostracized by various fello w employees an d supervisors because of the grievance she had filed in 1990. Th e Department

offered testimony indicating that Greaser was denied promotions not for retaliatory reasons but because she interviewed poorly. At the close of Greaser’s case in chief, the district court entered judgment as a matter of law (JAML) in favor of i n fav or of Dora Schriro and another of the individually named defendants. The cas e against the other named defendants was submitted to the jury, which returned a verdict in favor of each defendant. The district court denied Greaser’s motion for a new trial. S h ortly thereafter, the Department sought costs in the amount of $6,798.99. Greaser objected to the Department’s bill of costs and requested that she be granted leave t o proceed in forma pauperis . The district court rejected the Department’s application for costs and ordered

that the parties each bear their own costs. In addition, the court granted Greaser leave to proceed in forma pauperis

. On appeal, G

reaser contends that the district court erred in denying her motion for a new trial because: (1) the verdict was against the weight of the evidence; (2) the instructions were erroneous; and (3) the verdicts were inconsistent. In addition, shechallenges the district court’s grant of JAML in favor of Dora Schriro. The Department s denial of costs and seeking revocation of Greaser’s status.
II.

her motion for a n ew trial. We review the denial of a motion for a new trial for abuse discretio n. Buchholz v. Rockwell Int’l Corp.

. 1997). A new trial is req See , 961 F.2d 776, 780 (8th Cir. 1992). Moreover, we have re cognized ding should not form the basis for setting is shown.” Buchholz (quoting Greyhound Lines, Inc. v. Miller
A. Greaser first contends that a new trial is necessary because the jury’s against the weight of

the evidence. Where a motion for a new trial is based on such a Keenan v. Computer Associates Int’l, Inc. , 13 F.3d 1266, 1269 (8th Cir. Peterson ex rel. Peterson v. General Motors Corp.

. 1990)).

va rious individuals who interviewed Greaser testified that she was denie promotions not because of any retaliatory motive but because she did not interview well. individuals testified that Greaser appeared to lack self-confidence and ha difficulty answering the most basic of questions in a satisfactory manner. Moreover, a-6-

harassment grievance filed by Greaser when they interviewed her or when they failed to recommend her for promotion.
Greaser would have us disregard this testimony and rely instead on he r assurances to the jury that she interviewed well. She argues that the Depar tment’s claim that she interviewed poorly is entirely subjective and easy to manufacture. Thus, she asserts th at such testimony is inherently suspect and must be “closely scrutinized fo r discriminatory abuse.” O’Connor v. Peru State College , 781 F. 2d 632, 637-38 (8th Cir. 1986). The duty of close scrutiny was for the jury, howe ver, and although the jury was at liberty to disbelieve the testimony of Dep artment officials, it was also entitled to find that testimony credible, as it apparently did. Similarly , Greaser’s other arguments are little more than an invitation t o det ermine the credibility of witnesses, which was again a task for the jury to perform. See Man att v. Union Pac. R.R. Co. , 122 F.3d 514, 518 (8th Cir. 1997), cert. denied , 118 S. Ct . 697 (1998). We conclude that the jury’s verdict does not constitute a miscarr iage of justice and that the district court did not abuse its discretion in denying the motion for a new trial.
B.
Greaser also asserts that she is entitled to a new trial because the district cour t improperly instructed the jury. Jury instructio ns are a matter generally within the broad discretion of the district court. See Ryther v. KARE 11 , 1 08 F.3d 832, 845-46 (8th Cir. 1997) (en ban c), cert. denied , 117 S. Ct. 2510 (1997). We will reverse only if th e instructions, when vie wed in their entirety, contain “an error or errors that affected the substantial rights of the

parties.” Id. at 846 (quoting Hastings v. Boston Mut. Life Ins. Co. , 975 F.2d 506, 510 (8th Cir. 1992)). The instructions need not be technicall y perfect or even a model of clarity

. See id. Furthermore, the fact that a trial court erred in giving or not g iving a particular instruction to the jury does not automatically entitle-7-

a party to relief; the error

must be prejudicial. See Stockmen’s Livestock Market, Inc. v. Norwest Bank of Sioux City, N.A. , 135 F.3d 1236, 1246 (8th Cir. 1998).
Greaser concedes that she made no objection to the instructions. Rule 51 of the Federal Rules of Civil Procedure provides that “[n]o party may assign as error th e giving or the failure to give an instruction unless that party objects thereto before th e ju ry retires to consider its verdict, stating distinctly the matter objected to and th e grounds of the objection.” Fed. R. Civ. P. 51. The purpose of this rule “is to compel litigants to afford the trial court an opportunity to cure [a] defective instruction and to prevent litigants from ensuring a new trial in th e event of an adverse verdict by covertly relying on the error.” Dupre v. Fru-Con Engineering, Inc. , 112 F.3d 329, 333 (8th Cir. 1997) (quoting Missouri Pac. R.R. v. Star City Gravel Co. , 592 F.2d 455, 459 (8th Cir. 197 9)). Thus, where no adequate objection is made to preserve a purported error i n instructions, we review for plain error only. Pla in error review is “narrow and confined to the exceptional case where error has seriously affected the fairness, integrity, o r pub lic reputation of the judicial proceedings.” Ryther , 108 F.3d at 847 (quoting De s Moines Bd. of Water Works Trustees v. Alvord , 706 F.2d 820, 824 (8th Cir. 1983)). Having revie wed the challenged instructions, we conclude that no such error occurred here. See Ryther , 108 F.3d at 847.
C.
Greaser also contends that she is entitled to a new trial because the jury rendered inconsistent verdicts. The morning following t rial, the district court held an unrecorded telephone conference call during which the court apparently told the parties that certain members of the jury had expressed sympathy for Greaser. Greaser claims that thes e statements by members of the jury constitute a “special verdict” t hat is inconsistent with the ge neral verdict returned by the jury. No record of the conference call exists , however, and thus we have no way to review this issue. See Schmid v. United Bhd. of Carpenters & Joiners , 827 F.2d 384, 386 (8th Cir. 1987).-8- III.
As her f inal point on appeal, Greaser challenges the district court’s grant o f JAML in favor o f Dora Schriro. We review a district court’s grant of JAML de novo, applyi ng the same standard as that employed by the district court. See Manning v

. Met ropolitan Life Ins. Co., Inc. , 127 F.3d 686, 689 (8th Cir. 1997). We resolve al l doubts in favor of the nonmovi ng party and give that party the benefit of all reasonable inferences. See Brown v. United Missouri Bank, N.A. , 78 F.3d 382, 387 (8th Cir

. 1996)

. “We will affirm a grant of JAML where the nonmoving party has presente d insufficient evi dence to support a jury verdict in [her] favor.” Manning , 127 F.3d 689- 90. To prevail on a retaliation claim under Title VII, a pla intiff must demonstrate that she suffered an adverse employment action. “Although actions short of termination may constit ute an adverse employment action within the meaning of the statute, ‘no t everything that makes an employee unhappy is an actionable adverse action.’” Id. at 692 (quoting Montandon v. Farmland Indus., Inc. , 116 F.3d 355, 359 (8th Cir. 1997)). “Otherwise, minor and even trivial employment actions that ‘an irritable, chip-on-theshoulder emp loyee did not like would form the basis of a discrimination suit.’” Smart v. Ball State University , 89 F.3d 4 37, 441 (7th Cir. 1996) (quoting Williams v. BristolMyers Sq uibb Co. , 85 F.3d 270, 274 (7th Cir. 1996)). Rather, for an action to b e co nsideredadverse, it must have had a materially adverse impact on the plaintiff’ s employment terms or conditions. See Ledergerber v. Stangler , 122 F.3d 1142, 114 4 (8th Cir. 1997).
We c onclude that the evidence against Schriro fails as a matter of law t o demons trate an adverse employment action. Greaser contends that Schriro, wh o became director of the Central Missouri Corrections Center in 1993, improperl y han dledgrievances that Greaser filed in 1993, 1994, and 1995, and that Schriro’ s failure to do so constituted an adverse employment action. Howev er, Greaser is unable-9-

to point to any evidence supporting this allegation. The evidence shows that Schriro undertook to have the grievances investigated. Although Greaser takes issue with the conc lusions Schriro reached, she has produced no evidence indicating that Schriro’ s conclusions were tainted by some impermissible motive or ungrounded in fact.
Greaser contends that two separate statements made by Schriro evidence a n adverse emp loyment action. First, Greaser alleges that when she approached Schriro about the status of her grievances, Schriro (apparently believing that Greaser was near tears) asked Greaser if she would like a facial tissue. Greaser interp reted this statement as a sarc astic barb regarding Greaser’s propensity to complain. Second, Grease r contends that Schriro at one point told her she might want to resign “before someone gets hurt.”
We conclude that these two statements do not rise to the level of advers e employment action. Greaser does not allege that Schriro played any rol e in denying her pr omotional opportunities or in denying her any incident of employment. Likewise , Gr easerfailed to produce any evidence indicating that the statements were eve n remotely linked to Greaser’s 1990 grievance against Walling.
IV.
On cro ss-appeal, the Department argues that the district court abused it s discretion in denying costs pursuant to Fed. R. Civ. P. 54(d), which provide s that “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” This rule represents a codification of the “presumptio n that the prevailing party is entitled to costs.” Bathke v. Casey’s General Stores, Inc. , 64 F.3d 340, 347 (8th Cir. 1995). Despite this presumption, however, the district court has substant ial discretion in awarding costs to a prevailing party. See Zotos v

. Lindbergh School Dist. , 121 F.3d 356, 363 (8th Cir. 1997). We review the district-10-

cour t’s denial of costs for abuse of discretion. See Milton v. City of Des Moines , 47 F.3d 944, 947 (8th Cir. 1995).
There is no dispute that the Department is a “prevailing party” within th e meaning of Rule 54(d). The Department argues that, because of the presumptio n favoring an award of costs to the prevailing party, the dist rict court’s discretion to deny costs is narr ow and that costs should be denied only if there is some misconduct o r other action worthy of penalty on the part of the prevailing party.
As we held in Hibbs v. K-Mart Corp. , 870 F.2d 435, 443 (8th Cir. 1989) , howev er, this argument “overlooks the fact that . . . Fed R. Civ. P. 54(d) [is] phrased in permissive terms.” Id. at 443. See also Crawford Fitting Co. v. J.T. Gibbons, Inc. , 482 U.S. 437, 442 (1987) (“Rule 54(d) generally grants a federal court discretion t o refuse to tax costs in favor of the prevailing party”). We are satisfied that the district court did not abuse its discretion in denying costs in the circumstances of this case.
V.
Final ly, the Department brings a motion seeking revocation of Greaser’s i n forma paupe ris status. The in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure “that indigent persons will have equal access to the judicial system. ” Attw ood v. Singletary , 105 F.3d 610, 612 (11th Cir. 1997). The decision of whether to g rant or deny in forma pauperis status under section 1915 “is within the soun d discretion of the trial court ” and is reviewed for abuse of discretion. Cross v. General Motors Corp. , 721 F.2d 1152, 1157 (8th Cir. 1983). The Department contends that Greaser is not indigent and that her affidavit filed in support of her motion for leave to proceed in forma pauperis is at best incomplete andat worst blatantly false. In support of this contention, the Department points out that Greaser’s affidavit failed to reveal that her husband had earned in excess of-11-

$10,000 du ring the first three quarters of 1997, stating instead that her husband wa s “unemployed.” Thus, t

he Department contends that revocation of Greaser’s in forma pau peris status is mandated by 28 U.S.C. § 1915(e)(2), which provides, in part : “[T] he court shall dismiss the case at any time if the court determines that -- (A) th e allegation of poverty is untrue.”
The i naccuracies cited by the Department were brought to the district court’ s attention. The court was therefore aware that Greaser’s financial resources wer e understated in her affidavit, but nevertheless found that she wa s indigent. We conclude that this finding was not clearly erroneous and that the decision to grant in form a pauperis status to Greaser was not an abuse of discretion. See Cross , 721 F.2d a t 1157.
The jud gment is affirmed. The Department’s motion to revoke Greaser’s i n forma pauperis status is denied. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.