New Jersey Appellate Division Rules Termination Of An Older Employee Is Not Always Age Discrimination

June 14, 2023  |  By: Charu Mehta, Esq.

On May 26, 2023, the New Jersey Appellate Division in Kalloo v. New York New Jersey Rail, LLC affirmed summary judgment in favor of the employer finding there was no evidence that age played any role in the termination of the company’s most senior employee.


Peter Kalloo, a 61-year-old engineer, was part of a three-person crew at New York New Jersey Rail, LLC (NYNJR) that included a 22-year-old conductor and a 23-year-old brakeman. Throughout his employment, Kalloo got into frequent arguments with the conductor, with a few arguments escalating into name-calling and an allegation that Kalloo “got in [the conductor’s] face and “bumped [him]” off the engine in front of witnesses. In addition, during one of their arguments, Kalloo failed to use his whistle, slow down, or stop the train when a car was approaching, only narrowly avoiding a collision on the tracks. When the conductor confronted Kalloo about his failure to act, Kalloo told him that the “[car] had the stop sign” and “stop being a pussy.” The conductor reported this incident to his superiors, which led to a safety briefing on crew safety and communication. After the meeting, Kalloo reportedly called the conductor a “rat” and a “snitch”. He then “got in [the conductor’s] face,” and again bumped him with his chest. Several witnesses corroborated the confrontation and one witness reported that Kalloo verbally abused the conductor, “bumping” him. After an internal investigation, the hiring manager found that there was cause to terminate Kalloo for violating workplace rules, creating a hostile and threatening work environment, and placing the general public at risk.

Kalloo received a letter informing him that he was terminated for cause based on: (1) gross violation of established work and industry safety rules and procedures on April 19, 2017, that resulted in creating a threatening and hostile work environment in violation of the Collective Bargaining Agreement (CBA); and (2) on April 18, 2017, placing the general public at risk at a railroad crossing by defying an instruction to stop the railcar in violation of the Federal Railroad Administration (FRA). Kalloo did not file a grievance.

Kalloo filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) alleging age discrimination. Kalloo alleged that at the time of his termination, he was the oldest engineer or conductor employed with NYNJR, and he was replaced by the less qualified brakeman. The EEOC found insufficient evidence to show discrimination and dismissed the Charge.

Thereafter, Kalloo filed a complaint with the New Jersey Superior Court seeking damages based on a violation of the New Jersey Law Against Discrimination (NJLAD). In order to successfully assert a prima facie claim of age discrimination under the NJLAD, an employee must show that: (1) they are a member of a protected group; (2) their job performance met the employer's legitimate expectations; (3) they were terminated; and (4) the employer replaced, or sought to replace, the employee with a younger candidate.

The trial court granted summary judgment in favor of NYNJR finding that Kalloo failed to meet his burden under NJLAD because the record did not contain facts that established that age played any role in NYNJR’s decision to terminate him. The facts showed that NYNJR had legitimate, non-discriminatory reasons for Kalloo’s discharge based on his conduct in violation of the CBA.

Kalloo appealed the lower court’s decision arguing that NYNJR had “shifting explanations” for terminating him: there was evidence that the altercations never occurred and that NYNJR replaced him with a much younger employee. Thus, NYNJR’s reason for discharging him was pretextual and motivated by discriminatory intent.


The Appellate Division affirmed the trial court’s decision finding that while Kalloo was a member of a protected class based on his age, the record showed that he failed to meet his employer’s job performance expectations and the physical altercation, threats and hostile working environment claims were corroborated by his co-workers. The Court also found that Kalloo failed to demonstrate that he was replaced by a younger worker. Rather, his duties were reassigned to an existing employee who was already trained as an engineer (who began his training before Kalloo was fired). As such, Kalloo failed to show that his discharge was motivated by any discriminatory intent, despite Kalloo being older than the employee who replaced him.


This decision demonstrates the importance of documenting the reasons for termination of employment. Here, the employer properly documented that the employee violated specific provisions of the CBA and the FRA, which was sufficient for the court to conclude there was no inference of age discrimination. In addition, the fact that the replacement employee was younger did not demonstrate an inference of age discrimination to preclude summary judgment in favor of the employer.

For more information regarding this decision and strategies on how to properly document job performance as a best defense to claims of wrongful termination, please contact Partners Dina M. Mastellone, Esq. and Brigette N. Eagan, Esq. in the firm’s Human Resources Counseling & Compliance Practice via email here for Ms. Mastellone, via email here for Ms. Eagan, or call 973.533.0777.

Tags: Genova Burns LLCCharu MehtaEmployment Law & LitigationNJLADCollective Bargaining AgreementEEOCAge Discrimination