above. In any case, her application is no more than an impermissible attempt to retry the case on facts that were available to her at the time.
Plaintiff claims also that Kenneth Kelly falsely testified, before a racially mixed jury, that plaintiff had complained to him with respect to blacks employed in her department at Chemical. (Martin Aff. at 29-30) In fact, Kelly testified that plaintiff had said that other secretaries in the department, whom plaintiff allegedly referred to as "the black girls," did not like her and did not take her out to lunch. The Court does not recall whether Kelly claimed to have heard plaintiff make this statement or that he heard it from someone else. in either case, however, to the best of the Court's recollection, plaintiff's counsel never cross-examined with respect to that statement. Certainly plaintiff, who had testified before Mr. Kelly, never took the stand again to deny the statement. In these circumstances, she certainly would have no sufficient basis for vacating the judgment even if Mr. Kelly's testimony had been false.
Plaintiff's grievances against defense counsel are manifold, which perhaps is understandable in light of the fact the defense tried the case on the theory, among others, that plaintiff was not an entirely stable person. The most pointed of plaintiff's complaints, however, is the assertion that defendant's counsel violated Magistrate Judge Bernikow's April 1990 order directing plaintiff to produce her medical records and limiting disclosure of those records, "at this time," to defendant's lead counsel and permitting broader disclosure only upon further order of the Court.
(Martin Aff. at 2-3, 15-17) She contends that counsel violated this order by eliciting evidence that plaintiff had cosmetic surgery four months after she left Chemical Bank. (Martin Aff. at 15)
The issue of plaintiff's cosmetic surgery arose because plaintiff claimed that she could not afford the tuition for a paralegal course she had taken at NYU and was rendered ineligible for reimbursement of her tuition by Chemical as a result of her termination. In order to demonstrate that plaintiff had the financial ability to pay for the course, Chemical sought to introduce evidence that plaintiff had undergone cosmetic surgery during the relevant time period and that the cost of the surgery exceeded the cost of the tuition.
Chemical contends that its use of this evidence was discussed at side bar in advance. As there is no transcript and the Court does not recall whether that is so, the Court will not rely on its assertion. Irrespective of whether there was such a side bar, however, all that Chemical did was to elicit on cross-examination the fact that plaintiff had cosmetic surgery in the period April through December 1988 and that it cost $ 1,800. Plaintiff cannot now complain that the evidence came in. Either she failed to object, in which case she has only herself (or her counsel) to blame, or the Court overruled the objection, in which case any error should have been the subject of an appeal. Moreover, the Court is persuaded that any problem in the respect claimed by plaintiff was entirely immaterial in the broad sweep of this trial.
The fundamental issue in this case was whether Chemical terminated plaintiff because her performance was unsatisfactory or, as plaintiff claims, because of her age. All of the key dramatis personae testified. The jury concluded that plaintiff's age was not a factor, a conclusion that was not beyond the bounds of reason even if considered only in light of the fact that plaintiff was hired no more than one year before she was terminated. The Court is persuaded that the plaintiff had a fill and fair trial. The Court has considered all of plaintiff's arguments and concluded that none has sufficient merit to warrant disturbing the judgment. Moreover, no satisfactory explanation has been offered for the long delay in making this motion, which the Court finds unreasonable. Accordingly, the motion is denied in all respects both on the merits and for untimeliness.
Dated: September 16, 1996
Lewis A. Kaplan
United States District Judge