Hal Tendler v. Resorts Casino Hotel

• Court: New Jersey Superior Court Appellate Division
• Decided: July 6, 2026
• Docket: A-2896-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2896-24

HAL TENDLER,

Plaintiff-Appellant,

v.

RESORTS CASINO HOTEL, DRAFT KINGS RESORTS SPORTS BOOK,

Defendant-Respondent,

and

JOSEPH CAVILLA, KEVIN DUFFEY, and DENNIS COYLE,

Defendants. ____________________________

Submitted May 20, 2026 – Decided July 6, 2026

Before Judges Paganelli and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2634-22.

Castellani Law Firm, LLC, attorneys for appellant (David R. Castellani, on the brief). Cooper Levenson PA, attorneys for respondent (Russell L. Lichtenstein, Rebecca D. Winkelstein, and Katlin L. Trout, on the brief).

PER CURIAM

Plaintiff Hal Tendler appeals from an April 3, 2025 order that granted

DGMB Casino, LLC d/b/a Resorts Casino Hotel 1 (defendant) summary

judgment and dismissed his complaint with prejudice. 2 After conducting our de

novo revie, we conclude summary judgment was properly granted and affirm.

We glean these undisputed facts from the summary judgment record. In

May 2018, defendant hired plaintiff as a "Pit Boss." At the time, plaintiff was

approximately sixty-three years old. After six months, plaintiff, then sixty-four

years old, "was moved to oversee the Sportsbook at Resorts" Casino Hotel. At

age sixty-five, plaintiff was promoted to "Sportsbook Manager." In 2019, Draft

King Sportsbook replaced the Sportsbook. "Plaintiff became the sole manager

1 In its answer to plaintiff's complaint DGMB Casino, LLC d/b/a/ Resorts Casino Hotel advised it was improperly pled as Resorts Casino Hotel, Draft Kings Resorts Sports Book. 2 On December 13, 2022, the matter was "amicably adjusted" between plaintiff and defendants Joseph Cavilla, Kevin Duffey, and Dennis Coyle and dismissed with prejudice as to these defendants. These defendants are not participating in the appeal. A-2896-24 2 of Draft Kings Sportsbook[,] overseeing approximately thirteen people ,"

including employees that were younger than him.

In that role, "he was the sole person responsible" for "ensuring the

employees [he] oversaw . . . compl[ied] with the policies and procedures of both

[defendant] and Draft Kings [Sportsbook] as well as the regulations . . . [under]

the" New Jersey Casino Control Act (CCA), N.J.S.A. 5:12-1 to -233. In

addition, plaintiff "understood that he would potentially be responsible if the

employees under his supervision violated the Casino Control Commission

[(CCC)] regulations." Plaintiff was "required to be personally familiar with the

regulations that applied to . . . [Draft Kings] Sportsbook." Indeed, during his

deposition, plaintiff acknowledged "the 'buck stopped' with him."

In October 2019, plaintiff underwent a performance evaluation. There

were twenty-five evaluation categories; he received seven "outstanding," twelve

"exceeding expectations," and six "meet[ing] expectations."

(Alteration in original). Plaintiff received a raise following the "favorable

evaluation."

In April 2021, defendant's accounting department conducted a

surveillance review concerning fifty-one voucher redemptions that occurred "in

a span of approximately eight to ten minutes." The original vouchers had been

A-2896-24 3 created between July 2020 and March 2021. "The review concluded the

employees were consolidating small unclaimed value vouchers by redeeming

them and creating higher value vouchers." Plaintiff "acknowledged that

vouchers expire after one year and by creating new vouchers, he was extending

the expiration date of the vouchers." Plaintiff stated the "'unwritten policy'

regarding unclaimed vouchers" "had been carried out since 2018." Other

employees confirmed they were "instructed as to these practices by [p]laintiff."

Plaintiff, at age sixty-six, was terminated "for violations of policy, procedures,

and regulations." Plaintiff "was replaced by an individual approximately two

years younger than" him. He "testified he d[id] not believe being replaced by

an individual two years younger than him [wa]s discrimination."

Approximately six months after plaintiff's termination, the Division of

Gaming Enforcement (DGE) filed an action against defendant "for its improper

use of unclaimed Sportsbook tickets which was the subject of the" surveillance. 3

According to the DGE, plaintiff "admitted that he knew the Casino Revenue

3 On the motion for summary judgment, plaintiff argued this evidence as hearsay that should not be considered by the court. The court rejected that argument. Because plaintiff did not brief the hearsay issue on appeal, we deem his hearsay argument waived. See N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div. 2015) ("An issue that is not briefed is deemed waived on appeal.").

A-2896-24 4 Fund was not properly receiving its share of expired tickets." The DGE and

defendant settled the action by defendant paying a "civil monetary penalty and

a . . . tax assessment to resolve the violations."

Plaintiff filed a two-count complaint against defendants. He claimed

defendants had violated the New Jersey Law Against Discrimination (NJLAD),

N.J.S.A. 10:5-1 to -50, because "his age was [a] substantial factor in the decision

to terminate" him. Further, plaintiff alleged "the other managers, who are all

younger than [him], and participated in the same conduct giving rise to [his]

termination, ha[d] not been terminated for the handling of these vouchers, nor

ha[d] they received any disciplinary action regarding the same."

After discovery, defendant moved for summary judgment. The court

heard the parties' arguments, granted defendant summary judgment, and

authored a written decision accompanying the order. The court applied the

correct summary judgment standard and gave plaintiff all reasonable inferences

of fact. The court found plaintiff had failed to establish a prima facie case of

age discrimination under the NJLAD utilizing the framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The court found

plaintiff had not satisfactorily performed his job because his "actions were in

violation of the CCC as established by the DGE" and he had violated defendant's

A-2896-24 5 policies. In addition, the court found plaintiff failed to establish "that his age

played any significant role in the termination." In addition, for "completeness,"

the court found defendant "produced [evidence of] a legitimate,

non-discriminatory reason for [p]laintiff's termination" and "[p]laintiff did not

establish [d]efendant's reason for termination was a pretext or discriminatory"

because "his subordinates were [not his] comparators."

On appeal, plaintiff argues the court erred in determining his

comparators—younger employee supervisors—were not similarly situated to

him, rather than leaving that disputed fact for the jury to determine. Plaintiff

contends the court "specifically found . . . that these comparators . . . all

committed the same conduct he was accused of and for which he was

terminated" and "also found that [p]laintiff was 65 years old and that the

comparator supervisors working with [p]laintiff were all 30 years old or

younger." Thus, he asserts that despite the fact that he was the "only manager

of the [Draft Kings S]portsbook" and "[t]he comparator employees . . . were all

supervisor level employees" there was "evidence of pretext sufficient to reach a

jury."

We review a trial court's order granting or denying "a motion for summary

judgment de novo, applying the same standard used by the trial court." Samolyk

A-2896-24 6 v. Berthe, 251 N.J. 73, 78 (2022) (citing Woytas v. Greenwood Tree Experts,

Inc., 237 N.J. 501, 511 (2019)). A court must grant summary judgment "if the

pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to a judgment or

order as a matter of law." R. 4:46-2(c).

Under the Rule "[a]n issue of fact is genuine only if, considering the

burden of persuasion at trial, the evidence submitted by the parties on the

motion, together with all legitimate inferences therefrom favoring the

non-moving party, would require submission of the issue to the trier of fact."

Ibid. Thus, when reviewing the grant of a motion for summary judgment, the

appellate court considers "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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

540 (1995).

"Where there is no material fact in dispute . . . '[an appellate court] must

then decide whether the trial court correctly interpreted the law.'" N.J. Realtors

v. Twp. of Berkeley, 479 N.J. Super. 379, 391 (App. Div. 2024) (quoting

A-2896-24 7 DepoLink Ct. Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.

325, 333 (App. Div. 2013)) (internal quotation marks omitted). A trial court's

legal analysis is "not entitled to any special deference." Rowe v. Bell & Gosset

Co., 239 N.J. 531, 552 (2019) (quoting Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995)).

The LAD provides that "[i]t shall be an unlawful employment practice, or,

as the case may be, an unlawful discrimination . . . [f]or an employer, because

of the . . . age . . . to discharge . . . from employment such individual or to

discriminate against such individual . . . in terms, conditions, or privileges of

employment." N.J.S.A. 10:5-12(a). Thus, "the statute prohibits . . .

termination[] . . . based on age." Nini v. Mercer Cnty. Cmty. Coll., 202 N.J. 98,

114 (2010).

A "person claiming to be aggrieved by an unlawful employment practice

or an unlawful discrimination . . . may initiate suit in [the] Superior Court."

N.J.S.A. 10:5-13(a)(1). "An employee who commences an action seeking

redress for an alleged violation of the LAD 'may attempt to prove employment

discrimination by either direct or circumstantial evidence.'" Smith v. Millville

Rescue Squad, 225 N.J. 373, 394 (2016) (quoting Bergen Com. Bank v. Sisler,

157 N.J. 188, 208 (1999)). "A case established through direct evidence is also

A-2896-24 8 referred to as either a 'Price Waterhouse case' or a 'mixed-motive case.'" Ibid.

at n.3 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277-78 (1989)

(O'Connor, J., concurring)). Plaintiff does not allege a mixed-motive case.

Therefore, plaintiff must establish his case "through circumstantial

evidence . . . referred to as a 'McDonnell Douglas case' or a 'pretext case.'" Ibid.

(citing McDonnell Douglas, 411 U.S. at 802). The McDonnell Douglas

framework "suppl[ies] a tool for assessing claims, typically at summary

judgment." Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 589 U.S.

327, 340 (2020).

Applying the McDonnell Douglas

framework, a plaintiff must first prove a prima facie case of discrimination. Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 492 (1982). To do so, a plaintiff must show that he or she (1) belongs to a protected class; (2) applied for or held a position for which he or she was objectively qualified; (3) was not hired or was terminated from that position; and that (4) the employer sought to, or did fill the position with a similarly qualified person. Ibid. The establishment of a prima facie case gives rise to a presumption of discrimination. Id. at 493.

[Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002) (citation reformatted).]

Under the fourth element, we have held "[t]he focal question is not

necessarily how old or young the claimant or his replacement was, but rather

A-2896-24 9 whether the claimant's age, in any significant way, 'made a difference' in the

treatment he was accorded by his employer." Petrusky v. Maxfli Dunlop Sports

Corp., 342 N.J. Super. 77, 82 (App. Div. 2001). Our Supreme Court has noted

that "courts have modified the fourth element to require a showing that the

plaintiff was replaced with 'a candidate sufficiently younger to permit an

inference of age discrimination.'" Sisler, 157 N.J. at 213 (quoting Kelly v.

Bally's Grand, Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)). However, in

Reynolds, we held "the heightened standard utilized in reverse discrimination

suits," as in Sisler, does not apply to "traditional age discrimination claim[s]."

Reynolds v. Palnut Co., 330 N.J. Super. 148, 168 (App. Div. 2000); see also

Young v. Hobart W. Grp., 385 N.J. Super. 448, 458-59 (App. Div. 2005) (where

we recited both formulations but applied the "significant role in . . . termination"

test where the "plaintiff was a member of a protected class"). Thus, here where

we have a traditional age discrimination claim, the heightened standard is not

utilized.

After a prima facie case is established, "[t]he burden then shifts to the

defendant employer to rebut the presumption of discrimination by articulating a

legitimate, nondiscriminatory reason for the adverse employment action."

Reynolds, 330 N.J. Super. at 167 (citing Andersen, 89 N.J. at 493). This is a

A-2896-24 10 "burden of production—not [a] burden of proof or persuasion." Grande v. St.

Clare's Health Sys., 230 N.J. 1, 19 (2017). The employer's articulation must be

"taken as true," Mogull v. CB Commercial Real Estate Group, 162 N.J. 449, 471

(2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)), and

the court's evaluation of it during this second part of the McDonnell Douglas

test "can involve no credibility assessment." Id. at 469 (quoting Hicks, 509 U.S.

at 509).

"[T]he first two stages of a McDonnell Douglas test . . . require[s] findings

of law." Id. at 472. The New Jersey Supreme Court has "recommend[ed] that

the court should decide both [of] those issues." Id. at 473.

Once

the defendant employer has sufficiently set forth a legitimate, nondiscriminatory reason for the adverse employment action, the plaintiff then has the burden of persuasion to show that the defendant's proffered reason is merely a pretext, i.e., that it was not the true reason for the employment decision. Andersen, 89 N.J. at 493. A plaintiff may accomplish this by showing that (1) a discriminatory reason more likely motivated the employer than the employer's proffered legitimate reason, or (2) the defendant's proffered explanation is "unworthy of credence." Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981).

[Reynolds, 330 N.J. Super. at 168 (citations reformatted) (quoting Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 346-47 (App. Div. 1997)).]

A-2896-24 11 To prove pretext, however, a plaintiff must do more than simply show that

the employer's reason was false; he must also demonstrate that the employer was

motivated by discriminatory intent. See Erickson v. Marsh & McLennan Co.

Inc., 117 N.J. 539, 561 (1990) (holding that an "employee can be fired for a false

cause or no cause at all. That firing may be unfair but it is not illegal"). "[I]n

answering the overarching question of whether the employer's proffered

non-discriminatory reason for discharge was pretextual, the fact-finder

. . . [must] consider the employee's performance or other qualities in light of the

employer's subjective standards, including work ethic. In that respect, the

employer's subjective decision-making may be sustained even if unfair." Viscik,

173 N.J. at 21 (citation omitted).

One method a plaintiff may use to establish that a defendant's purported

"legitimate reason was only a pretext [i]s by proving disparate treatment."

Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 497 (App. Div. 1994).

"A disparate treatment claim with regard to discipline requires comparison

between the defendant's conduct toward plaintiff and other members of the

protected class on the one hand, and similarly situated employees not within the

protected class on the other." Jason v. Showboat Hotel & Casino, 329 N.J.

Super. 295, 305 (App. Div. 2000). Questions regarding treatment of similarly

A-2896-24 12 situated employees are for the jury. See id. at 304. "[T]he burden of proving

that the employer intentionally discriminated remains at all times with the

employee." Grande, 230 N.J. at 19.

Applying this well-established law, under our de novo review, we

consider the first prong of McDonnell Douglas, whether plaintiff established a

prima facie case of age discrimination. We note the trial court found plaintiff

had not made a prima facie showing under the second or fourth elements.

Plaintiff has not briefed these issues, and therefore these issues are deemed

waived. See Alloway Twp., 438 N.J. Super. at 505-06 n.2.

Nevertheless, for completeness, and giving plaintiff every factual

inference, we conclude plaintiff failed to make the prima facie showing under

element two, because he did not "perform[] the job at the level that met the

employer's legitimate expectations," Reynolds, 330 N.J. Super. at 167, or

element four, that his age played a "significant role in . . . termination." Young,

385 N.J. Super. at 459. Plaintiff did not meet defendant's legitimate expectations

because he participated in, and instructed others to participate in, a voucher

redemption scheme that violated CCA's regulations. DGE's complaint, filed

after plaintiff's termination, and defendant's payment of a civil monetary penalty

and tax assessment, underscore plaintiff's failures.

A-2896-24 13 Further, plaintiff "was replaced by an individual approximately two years

younger than" him, and he testified that "he d[id] not believe being replaced by

an individual two years younger than him [wa]s discrimination." Under these

circumstances, including the fact that plaintiff had recently received a positive

evaluation and pay raise, plaintiff's age did not play a significant role in his

termination.

Plaintiff argues he was entitled to have a jury determine his claim

regarding the disparate treatment of similarly situated employees. However, this

argument misses the mark, because having failed to establish a prima facie case,

plaintiff's case does not reach a jury.

Affirmed.

A-2896-24 14