Darlene Epps v. Dgmb Casino, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0406-24

DARLENE EPPS,

Plaintiff-Appellant,

v.

DGMB CASINO, LLC d/b/a

RESORTS CASINO HOTEL

and MILLIE SALERNO,

Defendants-Respondents.

Submitted November 10, 2025 – Decided January 8, 2026

Before Judges Sabatino and Bergman.

On appeal from the Superior Court of New Jersey, Law

Division, Essex County, Docket No. L-3039-21.

Forman, Cardonsky & Tsinman, LLC, attorneys for

appellant (Samuel Tsinman, on the briefs).

Cooper Levenson, PA, attorneys for respondents

(Jennifer B. Barr, on the brief).

PER CURIAM

This matter concerns plaintiff Darlene Epp's claims under the New Jersey

Law Against Discrimination ("LAD"), the New Jersey Consumer Fraud Act

("CFA"), and for common law fraud 1 against defendants DGMB Casino, LLC

d/b/a Resorts Casino Hotel and Millie Salerno, a casino host 2 employed by

DGMB. The trial court granted summary judgment to defendants dismissing all

plaintiff's claims with prejudice. Based on our review of the record and the

application of the relevant legal principles, we affirm.

I.

The following recitation of facts were taken in a light most favorable to

plaintiff. Rule 4:46-2. As presented in her briefing, plaintiff is an African-

American woman, who for decades, was a regular patron of defendant at its

Atlantic City casino hotel. DGMB does business as Resorts Casino and operates

a "Player Rewards" program, which assigns tier card status to participating

guests according to the number of tier points accumulated through a guest's

gambling activity. The card status levels and required tier points are as follows:

Premiere, 0 tier points; Epic, 100 tier points; Paramount, 600 tier points;

1

Plaintiff's complaint also pled age discrimination and breach of contract

claims, but neither are the subject of this appeal.

2

A casino host acts as a concierge to assist player/guest in making reservations,

redeeming promotional offers, receiving comps, and other services.

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Paramount Plus, 1,250 tier points; and Red Carpet, 2,500 tier points. Tier points

are earned based on the amounts wagered and higher tiers convey enhanced

benefits and promotional offers, such as complimentary rooms, dining,

entertainment, and free play money.

Plaintiff regularly accumulated points and advanced through the different

Player Rewards tiers, ultimately achieving Red Carpet card status in 2019 for

the annual period beginning March 12, 2019. Defendant's promotional materials

for the Player Rewards program states, "to remain in your current Star Card level

you must maintain the tier points above." The program rules make clear that all

rewards and status are "based on play," with both generic and specific language

reserving defendant's right to change, modify or revoke offers at its

"management's discretion" at any time and without prior notice. The

promotional materials also caution that "abuse of offers may result in loss of

current and/or future offers."

In June 2019, after achieving Red Carpet status, plaintiff alleged when she

entered defendant's VIP room, she was told by an unidentified employee that

she was the "youngest Black card player." She alleges that the other employees

looked at her as though they had "seen a ghost" and she felt unwelcomed.

During the weekend of June 28, 2019, plaintiff claimed she had two telephone

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interactions with Salerno, her assigned casino host. The first interaction

concerned being assigned a smoking hotel room despite plaintiff's asthma, and

the other concerned not receiving her expired "birthday money" promotional

offer. While plaintiff alleges that Salerno was aggressive during their phone

call, Salerno arranged for plaintiff's room to be changed, and she re-offered

plaintiff's birthday bonus. The record reflects these two conversations are the

only instances of direct contact between plaintiff and Salerno, and they have

never met in person.

Unknown to plaintiff, her account activity was being monitored by

defendant's Director of Financial and Marketing Analysis, Jason DiPietro, due

to a shift in her play pattern. While plaintiff had previously wagered her own

funds at high levels, during the period in question she increasingly relied on

promotional free play. As a result, her account was automatically flagged by

defendant's computer system for aberrant activity; specifically, for redeeming

significant amounts of free play offers while playing minimally with her own

money. The computerized report is based solely on account number and

gambling data, and does not show the players name, demographics, race, or age.

Defendant does not maintain race demographic data for its players. At the time,

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plaintiff had reserved casino offers for rooms every weekend in June 2019 using

her Red Carpet reward status.

Following the flagging of her account, DiPietro reviewed the report

generated for her account, and saw a "trend of numbers" suggesting that plaintiff

might be trying to recoup some of the money she had previously lost by

gambling with promotional, free play, or playing with the bare minimum of her

own money.

DiPietro informed Salerno and his supervisor, Domenick Mariano, via

email that plaintiff's play had declined and she was still accepting free play

offers. Mariano instructed DiPietro that if plaintiff's play pattern did not

improve and return to previous levels, her account should be downgraded and

eligibility for promotional offers revoked; meanwhile, her account continued to

be monitored throughout June 2019. Plaintiff was not informed of this

development, nor had she met or spoken with DiPietro or Mariano.

In July 2019, plaintiff discovered that her Red Carpet Star card was

blocked, and her account was on "promotional ban" status; meaning she no

longer received Red Carpet promotional offers. When plaintiff reported this

change, she was issued a lower-tier Star Card for Paramount status, and staff

explained to her that after earning at least five additional tier points, her

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eligibility for Red Carpet offers could be reviewed and restored. Plaintiff

continued to gamble at the casino using her new Star Card. Plaintiff was never

physically banned from the hotel or casino and continued to be eligible for lower

tier play and promotions.

In April 2021, plaintiff filed a civil complaint against defendants. The

complaint asserted claims under the LAD, based on racial discrimination, the

CFA and for common law fraud. After the conclusion of discovery, defendants

moved for summary judgment seeking dismissal of all counts in her complaint.

Plaintiff filed opposition. After considering the briefing and arguments, the

court granted summary judgment to defendants and dismissed plaintiff's

complaint with prejudice in its entirety.

In its oral decision, the court found no genuine issues of material fact

existed concerning the following. The record did not show any evidence that

plaintiff was denied benefits because of her race. The casino did not track

players’ racial or age data in its rewards system. Plaintiff’s assertion that

defendants knew her race because of her voice on the phone or being told by an

unnamed person that she was the “youngest Black card player” was unsupported

by any concrete evidence. The defendant presented unrebutted evidence,

including testimony and written policy documents that plaintiff’s level of

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rewards was reduced solely due to her failure to maintain the required level of

gambling activity, per the standard, automated criteria. Defendant’s internal

emails and witness testimony indicated decisions were made on play data alone,

without reference to personal demographics.

The court further found there was no evidence of discriminatory animus

by defendant. Plaintiff’s subjective feelings of being treated unfairly or

experiencing nastiness were deemed insufficient. The court noted there were no

overt or implied racist comments by defendant's decision-makers, and any

ambiguous remarks from non-decisionmakers lacked the necessary link to the

adverse action. Plaintiff produced no evidence on how similarly situated players

of different races were treated, nor statistical or comparator data.

Concerning the CFA and common law fraud claims, the court found the

promotional materials and mailers, which plaintiff admitted to reviewing, had

clearly provided in writing that rewards status, offers, and benefits were subject

to change based on continued qualifying gambling activity. Notices in the

materials explicitly reserved the casino’s right to change or revoke offers

without notice and stated that rewards depended on ongoing play. The record

showed plaintiff understood she had to maintain play levels because her rewards

status had fluctuated previously. There was no evidence that false

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representations or unconscionable omissions were made by defendants, or that

the rules were applied differently to plaintiff.

The trial court further found plaintiff did not suffer ascertainable loss or

damages as required by the CFA, because she was permitted to use previously

earned offers, was not banned from the premises, and was only downgraded to

a lower rewards tier. She voluntarily chose not to return to the casino. Because

the court found DGMB was not liable, the court also dismissed the individual

claims against Salerno under the aiding or abetting theory asserted by plaintiff.

On appeal, plaintiff contends she properly established claims under the

LAD, CFA and for common law fraud because genuine issues of material fact

existed in the record precluding summary judgment as to these claims.

II.

We review a judge's decision on a motion for summary judgment de novo,

applying the same standard as the trial court. Samolyk v. Berthe, 251 N.J. 73,

78 (2022). We must consider "whether the competent evidential materials

presented, when viewed in the light most favorable to the non-moving party, are

sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Ibid. (quoting Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995)). See also R. 4:46-2(c).

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"[A]ppellate review of the grant [or denial] of summary judgment is

limited to the record that existed before the motion judge." E.S. ex rel. G.S. v.

Brunswick Inv. Ltd. P'ship, 469 N.J. Super. 279, 286 (App. Div. 2021); see

Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188 (1963); Lebron v. Sanchez,

407 N.J. Super. 204, 213 (App. Div. 2009). We do not defer to the trial court 's

legal analysis or statutory interpretation. See RSI Bank v. Providence Mut. Fire

Ins. Co., 234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209

(2014).

A.

We first address plaintiff's contention the court erred by dismissing her

LAD claims because genuine issues of material fact existed in the record

showing the denial of promotional benefits were based on her race. Plaintiff

asserts her race impacted defendant's decision to downgrade her reward tier

citing the "youngest Black card player" statement from an unnamed employee,

the unsettling looks of other employees and the confrontational phone call with

Salerno.

"The 'overarching goal of the [LAD] is nothing less than the eradication

"of the cancer of discrimination."'" Zive v. Stanley Roberts, Inc., 182 N.J. 436,

446 (2005) (alteration in original) (quoting Fuchilla v. Layman, 109 N.J. 319,

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9

334 (1988)). "Because of its remedial purpose, the LAD should be construed

liberally to achieve its aims." Zive, 182 N.J. at 446.

N.J.S.A. 10:5-4 recognizes as a civil right the opportunity "to obtain all

the accommodations, advantages, facilities, and privileges of any place of public

accommodation . . . without discrimination because of . . . race, [] color [or]

national origin[.]" To protect that right, N.J.S.A. 10:5-12(f)(1) declares it to be

unlawful discrimination for:

any owner, lessee, proprietor, manager, superintendent,

agent, or employee of any place of public

accommodation directly or indirectly to refuse,

withhold from or deny to any person any of the

accommodations, advantages, facilities or privileges

thereof, or to discriminate against any person in the

furnishing thereof . . . on account of the race . . . of such

person[.]

[Ibid.]

N.J.S.A. 10:5-5(l) defines a "place of public accommodation" to include a "retail

shop, store, establishment, or concession dealing with goods or services of any

kind." Ibid.

Under the LAD, "there is no single prima facie case that applies to all

discrimination claims. Instead, the prima facie elements of a claim vary

depending upon the particular [ ] discrimination claim being made." Victor v.

State, 203 N.J. 383, 409-10 (2010). To state a public accommodation NJLAD

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claim, a plaintiff must allege; (1) defendant operates a place of public

accommodation, (2) the plaintiff is a member of a protected class, and (3) he or

she was denied equal treatment on the basis of his or her membership in a

protected class. N.J.S.A. 10:5-12(f); see L.W. ex rel. L.G. v. Toms River Reg'l

Schs. Bd. of Educ., 189 N.J. 381, 401-02 (2007).

"[T]he focal issue [in a public accommodation discrimination case] is

whether defendant acted with an actual or apparent design to discourage present

or future use of the public accommodation by plaintiff on account of her

protected status." Turner v. Wong, 363 N.J. Super. 186, 213 (App. Div. 2003).

Moreover, the "LAD is not limited to outright denial of access or service. . . .

[I]t also renders unlawful any acts discriminating against any person in the

furnishing of the public accommodation." Id. at 212.

A "'plaintiff need not prove that [the protected characteristic] was the sole

or exclusive consideration' . . . ; rather, he need only show 'by a preponderance

of the evidence that it made a difference' in that decision." C.V. by and through

C.V. v. Waterford Twp. Bd. of Educ., 255 N.J. 289, 317 (2023) (quoting Bergen

Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999) (internal quotation marks

and citation omitted)). Such evidence may be shown through either direct or

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circumstantial evidence. Smith v. Millville Rescue Squad, 225 N.J. 373, 394

(2016) (citing Sisler, 157 N.J. at 208).

Plaintiff's LAD claim is based on the following: (1) an unnamed employee

of defendant referenced her as the "youngest Black card player;" (2) Salerno

mistreated her over the phone; (3) unnamed employees looked at her as if they

had "seen a ghost;" and, thereafter, (4) she was banned from using her Red

Carpet rewards status and her status was downgraded.

Defendants did not dispute that prongs one and two of plaintiff's prima

facie LAD claim were met, admitting it is a place of public accommodation and

plaintiff is a member of a protected class. Thus, plaintiff's claim rests upon

prong three, whether plaintiff was denied equal treatment on the basis of her

protected class. We conclude, as did the trial court, that even when viewing all

facts in a light most favorable to plaintiff, the record does not support genuine

issues of material fact exist concerning the third prong of the above enunciated

test.

First, plaintiff's claim defendant violated the LAD because she was

allegedly referred to as the "youngest Black card player" has no support in the

record other than plaintiff's uncorroborated statement. Plaintiff's own

deposition testimony is unclear as to whether she was referred to in the above

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manner or instead, as the "youngest red card player." Regardless, neither would

give rise to an inference that her race was a factor in banning her from utilizing

promotional offers or decreasing her card level benefits.

To support her arguments, plaintiff cites two cases where a defendant

employee's comments satisfied the prima facie standard for a public

accommodation LAD claim. In Franek v. Tomahawk Lake Resort, 333 N.J.

Super. 206, 217 (App. Div.), certif. denied, 166 N.J. 606 (2000) (a resort owner

allegedly stated, "I don't want those kinds of people here," and "[y]ou shouldn't

bring those of kinds of people here") and Turner, 363 N.J. Super. at 197 (store

owner refused to provide an African American patron with a replacement

accompanied by racial epithets).

However, the cited cases are factually distinguishable because the

employee who allegedly made the statement here is an unidentified employee

and plaintiff has failed to show the employee had any authority or control in

decision-making policies for the defendant. "[C]omments by individuals

outside the decision-making process are considered stray remarks, which on

their own are inadequate to support an inference of discrimination." Grasso v.

W. N.Y. Bd. of Educ., 364 N.J. Super. 109, 118 (App. Div. 2003), certif.

denied, 179 N.J. 312 (2004). However, "discriminatory comments made by one

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with input into the decision-making process are not stray remarks." Ibid. We

concur with the trial court that plaintiff failed to identify the employee or

provide any evidence the employee had any decision-making authority for

defendant for their alleged comments to be considered discriminatory.

In addition, no evidence in the summary judgment record showed any

managerial employees (including Salerno, DiPietro or Mariano) knew plaintiff's

race at the time her card benefits were denied/downgraded. Plaintiff attempts to

draw such a connection because the employee in the VIP room saw plaintiff 's

race and because Salerno spoke with plaintiff on the phone, defendants must

have known her race. Plaintiff does not provide any support for her belief that

defendants, including Salerno, knew her race. In regard to whether Salerno

should have known plaintiff's race because of their phone call, plaintiff only

cites to her own subjective beliefs, which are insufficient to raise genuine issues

to preclude summary judgment.

Further, the record is barren of any evidence that Salerno had any

authority to invoke the promotional ban which plaintiff claims was the adverse

discriminatory action. Both DiPietro's deposition and defendant's business

records confirm that the decision to ban plaintiff from using promotional

rewards were made by financial/marketing management, not by Salerno.

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Salerno was included on email exchanges about plaintiff's account once it had

been flagged because she was plaintiff's assigned casino host, not because she

had any authority to make this decision. Although Salerno responded to an

email noting plaintiff's June weekend reservations, no evidence exists that she

directed, authorized, or recommended the ban or downgrade.

In addition, the record is undisputed that a managerial decision was made

to ban plaintiff's account based on a review of an automatic computer report.

No dispute exists in the record to DiPietro's testimony that an automatic

computer system originally flagged plaintiff's account based on changes in her

play activity, and he did not have access to any information other than her play

data and account number. Only after receiving this data did DiPietro advise

Mariano and Salerno. No dispute existed in the record that plaintiff's

demographic information, including her race, was not accessible to DiPietro and

race was not referenced in any manner in any email exchange, any other

communication, nor is there any evidence showing the promotional ban was

based on anything besides plaintiff's level of play.

In reference to the aiding and abetting claims against Salerno, we note "it

is unlawful '[f]or any person, whether an employer or an employee or not, to aid,

abet, incite, compel or coerce the doing of any of the acts forbidden [under the

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NJLAD],' N.J.S.A. 10:5-12[(e)], and such conduct may result in personal

liability." Tarr v. Ciasulli, 181 N.J. 70, 82-83 (2004). In order to hold an

employee individually liable as an aider or abettor, a plaintiff must show that

(1) the party whom the defendant aids must perform a wrongful act that causes

an injury; (2) the defendant must be generally aware of their role as part of an

overall illegal or tortious activity at the time that they provide the assistance;

and (3) the defendant must knowingly and substantially assist the principal

violation. Id. at 84 (citations omitted). Since we have determined her employer,

DGMB did not perform a wrongful act under the LAD, we conclude the court

did not err in dismissing the aiding and abetting claim against Salerno.

B.

We next address plaintiff's contention that the dismissal of her common

law fraud claim was error. Her claim was primarily based on defendant's lack

of clarity and transparency in regard to the requirements needed to retain her

Red Card status. Plaintiff contends because defendant's materials make no

mention of the "theoretical loss" statistic, or provide rules on how to maintain

her status, defendant committed common law fraud. The contention lacks merit.

To establish a claim of common law fraud, a plaintiff must demonstrate:

"(1) a material misrepresentation of a presently existing or past fact; (2)

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knowledge or belief by the defendant of its falsity; (3) an intention that the other

person rely on it; (4) reasonable reliance thereon by the other person; and (5)

resulting damages." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73

(2005) (quoting Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997)).

Importantly, "fraud is never presumed." Weil v. Express Container Corp., 360

N.J. Super. 599, 613 (App. Div. 2003). Instead, a plaintiff "must prove each

element by 'clear and convincing evidence.'" DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 336 (App. Div. 2013) (quoting

Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395 (App. Div.

1989)). Our Rules of Court further require allegations of fraud or

misrepresentation to show "particulars of the wrong, with dates and times if

necessary[.]" R. 4:5-8.

Plaintiff's argument largely relies on the lack of transparency in

defendant's promotional materials and her own assertions regarding her play

level. She maintains because the promotional materials make no mention of

defendant's "theoretical loss" statistic, and the promotional offer represented

was not the actual offer, issues of material fact existed precluding the grant of

summary judgment.

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No dispute exists in the record that the written promotional materials in

question specifically state "[a]buse of offers may result in loss of current and/or

future offers" and confirm "offer[s are] subject to change" and "management

reserves the right to cancel, revoke, amend or modify offers and/or promotions

at any time and without any notice." Furthermore, the website explaining the

program states that "[defendant] management is sole judge of abuse." Lastly,

the materials inform would-be patrons that "[r]ewards are based on play." Ibid.

While the materials are not explicit as to the exact levels of personal funded

play that are required, nor do they mention "theoretical loss" as asserted by

plaintiff, the materials explicitly provided the following key information: (1)

abuse of offers may result in loss of current or future offers; (2) management

reserves the right to cancel or revoke offers without notice; (3) management is

the sole judge of abuse; and (4) rewards are based on play.

Plaintiff claims she "spent money . . . to maintain her annual level of play

and retain her red card status as per the rules." However, she failed to address

the amount of her own money spent compared to promotional funds she obtained

from the reward program. Conversely, DiPietro testified, based on reports,

plaintiff consistently took "triple digits of free play while gambling only single

digits of her own money" after obtaining Red Carpet status. Additionally, in the

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email exchange discussing the review and change to plaintiff's account, Salerno

confirmed that plaintiff had booked hotel rooms for every weekend in June 2019

using promotions she received; further emphasizing the large number of free

promotions she was utilizing as compared to her low level of personally funded

gambling activity.

We are satisfied the plain meaning reading of the promotional materials

adequately disclosed that a player's card status was subject to change based on

the player's abuse of the program and this determination was in the sole

discretion of defendant. The record clearly demonstrates plaintiff was aware her

rewards levels were based on her level of play. We conclude the promotional

materials are clear that an abuse of promotional offers may result in a loss of

card privileges and defendant has sole discretion to determine whether abuse has

occurred.

Based on the above undisputed facts, no genuine issues of material fact

existed in the record showing defendant made material misrepresentations under

prong one of Banco Popular and summary judgment was appropriately granted

dismissing her common law fraud claim.

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C.

We now address plaintiff's claim under the CFA, which are based on the

identical factual assertions pled in her common law fraud claim. A party

asserting a claim under the CFA must establish: 1) unlawful conduct by the

other party in connection with the sale or advertisement of a product; 2) an

ascertainable loss on the part of the party asserting the claim; and 3) a causal

relationship between the unlawful conduct and the ascertainable loss. Dabush

v. Mercedes-Benz USA, LLC, 378 N.J. Super. 105, 114-15 (App. Div. 2005).

"Unlawful conduct" is either an affirmative act, knowing omission, or regulatory

violation. See Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 245

(2005); see also N.J.S.A. 56:8-2.3 When the alleged violation is an affirmative

act, "intent is not an essential element and the plaintiff need not prove that the

defendant intended to commit an unlawful act." Ibid.; Gennari v. Weichert

Realtors, 148 N.J. 582, 605 (1997). However, when the alleged fraud is

considered an omission, a "plaintiff must show that defendant acted with

3

"The act, use or employment by any person of any unconscionable commercial

practice, deception, fraud, false pretense, false promise, misrepresentation, or

the knowing, concealment, suppression, or omission of any material fact with

intent that others rely upon such concealment, suppression or omission, in

connection with the sale or advertisement of any merchandise." N.J.S.A. 56:8-

2.

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knowledge, and intent is an essential element of the fraud." Chattin v. Cape

May Greene, Inc., 124 N.J. 520, 522 (1991).

The factual basis for plaintiff's CFA claim mirrors her common law fraud

claim, i.e. defendant knowingly omitted its "theoretical loss" process and

purposely failed to describe in detail the requirements to maintain red carpet

status in its advertised promotion. Based on our determinations previously

expressed above in Part IIB, we conclude the promotional offer here is not an

unlawful practice under the CFA. We conclude no genuine issues of material

fact exist for a reasonable jury to be able to find defendant intended to defraud

plaintiff by knowingly omitting information in its promotional materials. Once

again, we reiterate defendant's materials were clear that an abuse of promotional

offers may result in the loss of present and future benefits and defendant had

sole discretion to determine if abuse occurred.

We appreciate that plaintiff and other players would want to have more

information about what levels of play were required to be maintained to keep

Red Carpet status. Even so, defendant had no legal obligation to do so, and its

practices and communications—although arguably ambiguous—were not

fraudulent. Because plaintiff has failed to establish genuine material facts

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existed under the first prong of the CFA, her claim fails. Based on the above

determination, we deem the remaining prongs under the CFA as moot.

To the extent we have not addressed any of plaintiff's remaining

arguments, we conclude those arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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