                    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,     *
                                     *
       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,1 District Judge.

                               ___________




     1
        The HONORABLE MICHAEL J. DAVIS, United States District Judge for the
District of Minnesota, sitting by designation.

                                    -2-
WOLLMAN, Circuit Judge.

       Eunice Greaser appeals from the judgment entered by the district court2 on the
jury’s verdict in favor of the Missouri Department of Corrections and various
individually named employees of the Department (hereinafter referred to collectively
as “the Department”) in her Title VII retaliation claim. 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 in
forma pauperis status. We affirm.

                                            I.

       Greaser began working for the Missouri Department of Corrections in 1980.
After serving as a correctional officer at the Renz Correctional Center for four years,
Greaser left to care for her seriously ill husband. She returned to employment with the
Department in 1986 as a correctional officer at the Central Missouri Correctional
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 internal
sexual harassment grievance against Walling. The Department investigated the
situation and, having found reason to believe Greaser’s allegation, demoted Walling
and transferred him to another correctional facility.3




      2
       The Honorable William A. Knox, United States Magistrate Judge for the
Western District of Missouri, to whom the case was referred by consent of the parties
pursuant to 28 U.S.C. § 636(c).
      3
      Walling was apparently promoted to his previous rank approximately twenty
months after his demotion.

                                           -3-
       After filing the grievance against Walling, Greaser continued to work for the
Department until 1995. During that time, Greaser sought various promotional
opportunities within the Department. Although she was a candidate for approximately
thirty positions 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 Department
officials were retaliating against her because of her 1990 grievance and Walling’s
subsequent demotion. This suspicion 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
Department had retaliated against her in violation of Title VII of the Civil Rights Act
of 1964. At trial, Greaser testified that she believed that she was denied promotions,
given unfavorable duty assignments, and belittled and ostracized by various fellow
employees and supervisors because of the grievance she had filed in 1990. The
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 in
favor of Dora Schriro and another of the individually named defendants. The case
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.
Shortly 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 to
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, Greaser 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, she




                                             -4-
challenges 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 new trial. We review the denial of a motion for a new trial for abuse
   discretion.       Buchholz v. Rockwell Int’l Corp.                                 .
1997). A new trial is req
See                , 961 F.2d 776, 780 (8th Cir. 1992). Moreover, we have recognized
                                                     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)).

             various 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
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 her
assurances to the jury that she interviewed well. She argues that the Department’s claim
that she interviewed poorly is entirely subjective and easy to manufacture. Thus, she
asserts that such testimony is inherently suspect and must be “closely scrutinized for
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, however, and although the jury was
at liberty to disbelieve the testimony of Department 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 to
determine the credibility of witnesses, which was again a task for the jury to perform.
See Manatt 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
miscarriage 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 court
improperly instructed the jury. Jury instructions are a matter generally within the broad
discretion of the district court. See Ryther v. KARE 11, 108 F.3d 832, 845-46 (8th Cir.
1997) (en banc), cert. denied, 117 S. Ct. 2510 (1997). We will reverse only if the
instructions, when viewed 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 technically
perfect or even a model of clarity. See id. Furthermore, the fact that a trial court erred
in giving or not giving a particular instruction to the jury does not automatically entitle



                                            -6-
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 the
giving or the failure to give an instruction unless that party objects thereto before the
jury retires to consider its verdict, stating distinctly the matter objected to and the
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 the 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.
1979)). Thus, where no adequate objection is made to preserve a purported error in
instructions, we review for plain error only. Plain error review is “narrow and confined
to the exceptional case where error has seriously affected the fairness, integrity, or
public reputation of the judicial proceedings.” Ryther, 108 F.3d at 847 (quoting Des
Moines Bd. of Water Works Trustees v. Alvord, 706 F.2d 820, 824 (8th Cir. 1983)).
Having reviewed 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 trial, 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 these
statements by members of the jury constitute a “special verdict” that is inconsistent with
the general 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).



                                           -7-
                                           III.

       As her final point on appeal, Greaser challenges the district court’s grant of
JAML in favor of Dora Schriro. We review a district court’s grant of JAML de novo,
applying the same standard as that employed by the district court. See Manning v.
Metropolitan Life Ins. Co., Inc., 127 F.3d 686, 689 (8th Cir. 1997). We resolve all
doubts in favor of the nonmoving 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 presented
insufficient evidence to support a jury verdict in [her] favor.” Manning, 127 F.3d 689-
90.

       To prevail on a retaliation claim under Title VII, a plaintiff must demonstrate that
she suffered an adverse employment action. “Although actions short of termination may
constitute an adverse employment action within the meaning of the statute, ‘not
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-the-
shoulder employee did not like would form the basis of a discrimination suit.’” Smart
v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996) (quoting Williams v. Bristol-
Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)). Rather, for an action to be
considered adverse, it must have had a materially adverse impact on the plaintiff’s
employment terms or conditions. See Ledergerber v. Stangler, 122 F.3d 1142, 1144
(8th Cir. 1997).

        We conclude that the evidence against Schriro fails as a matter of law to
demonstrate an adverse employment action. Greaser contends that Schriro, who
became director of the Central Missouri Corrections Center in 1993, improperly
handled grievances that Greaser filed in 1993, 1994, and 1995, and that Schriro’s
failure to do so constituted an adverse employment action. However, Greaser is unable



                                           -8-
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
conclusions 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 an
adverse employment 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 interpreted this statement
as a sarcastic barb regarding Greaser’s propensity to complain. Second, Greaser
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 adverse
employment action. Greaser does not allege that Schriro played any role in denying her
promotional opportunities or in denying her any incident of employment. Likewise,
Greaser failed to produce any evidence indicating that the statements were even
remotely linked to Greaser’s 1990 grievance against Walling.

                                           IV.

       On cross-appeal, the Department argues that the district court abused its
discretion in denying costs pursuant to Fed. R. Civ. P. 54(d), which provides 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 “presumption
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 substantial 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




                                           -9-
court’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 the
meaning of Rule 54(d). The Department argues that, because of the presumption
favoring an award of costs to the prevailing party, the district court’s discretion to deny
costs is narrow and that costs should be denied only if there is some misconduct or
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),
however, 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 to
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.

       Finally, the Department brings a motion seeking revocation of Greaser’s in
forma pauperis 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.”
Attwood v. Singletary, 105 F.3d 610, 612 (11th Cir. 1997). The decision of whether
to grant or deny in forma pauperis status under section 1915 “is within the sound
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
and at 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



                                           -10-
$10,000 during the first three quarters of 1997, stating instead that her husband was
“unemployed.” Thus, the Department contends that revocation of Greaser’s in forma
pauperis 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) the
allegation of poverty is untrue.”

       The inaccuracies cited by the Department were brought to the district court’s
attention. The court was therefore aware that Greaser’s financial resources were
understated in her affidavit, but nevertheless found that she was indigent. We conclude
that this finding was not clearly erroneous and that the decision to grant in forma
pauperis status to Greaser was not an abuse of discretion. See Cross, 721 F.2d at
1157.

      The judgment is affirmed. The Department’s motion to revoke Greaser’s in
forma pauperis status is denied.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -11-
