UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-2242

SPENCER E. JONES, III,

Plaintiff - Appellant,

v.

ROSS STERNHEIMER, CEO, Everything Casual, incorporated f/n/a 

Sternheimer Bro., Inc., t/a A & N Stores; PAT MONEY, 

Assistant CEO, Everything Casual, Inc., f/n/a Sternheimer 

Bro., Inc., t/a A & N Stores; ADDRIANE LATHAN, Head of Human 

Resources, Everything Casual, Inc., f/n/a Sternheimer Bro., 

Inc., t/a A & N Stores; JAMES BAILEY, Warehouse Manager, 

Everything Casual, Inc., f/n/a Sternheimer Bro., Inc., t/a A 

& N Stores; ANGELA CRAWLEY, Dock Supervisor, Everything 

Casual, Inc., f/n/a Sternheimer Bro., Inc., t/a A & N 

Stores,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Robert E. Payne, Senior 

District Judge. (3:09-cv-00648-REP)

Submitted: June 14, 2010 Decided: July 6, 2010

Before WILKINSON, KING, and AGEE, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Spencer E. Jones, III, Appellant Pro Se.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Spencer Jones, III, appeals the district court’s order 

denying his motion to proceed in forma pauperis and instructing 

the clerk not to file Jones’s complaint. In his complaint, 

Jones raises general allegations of discriminatory retaliation 

and termination under Title VII of the Civil Rights Act of 1964, 

as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006) (“Title VII”); 

the Age Discrimination in Employment Act of 1967 ("ADEA"), as 

amended, 29 U.S.C. §§ 621 to 634 (2006); and the Americans with 

Disabilities Act of 1990, 42 U.S.C. § 12101 (2006) (“ADA”). 

Additionally, Jones alleged that his termination violated the 

Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2619 (2006) 

and the Equal Pay Act, 29 U.S.C. § 206(d) (2006). Jones also 

filed a motion for leave to proceed in forma pauperis.

The basis for the district court’s denial of Jones’s 

motion to proceed in forma pauperis and instruction to the clerk 

not to file Jones’s complaint was its finding that Jones’s 

complaint was frivolous, as Jones sought relief against 

individual employees under statutes that the district court 

concluded afforded redress only against employers. 

Additionally, the district court noted that it had previously 

dismissed a prior complaint against the same individual 

defendants on such a basis, see Jones v. Sternheimer Bros., 
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Inc.

Initially, we note that the district court did not 

explicitly dismiss Jones’s action. Instead, it issued a sua 

sponte order instructing the clerk not to file Jones’s complaint 

on the grounds that it was frivolous and without merit. 

Nevertheless, such action was akin to a frivolity dismissal 

under 28 U.S.C. § 1915(e)(2)(B) (2006), and we analyze it 

accordingly.

, No. 3:08-cv-00187-REP (E.D. Va. Aug. 27, 2009), and found 

that the allegations raised in this complaint were virtually 

identical to those made in the prior complaint. Jones filed a 

timely appeal. We affirm in part, vacate in part, and remand 

for further proceedings consistent with this opinion.

A federal court possesses authority to dismiss an in 

forma pauperis case at any time the court determines the action 

or appeal is frivolous, malicious, fails to state a claim upon 

which relief may be granted, or seeks monetary relief against a 

defendant who is immune from such relief. 28 U.S.C. § 

1915(e)(2)(B) (2006). “The overriding goal in policing in forma 

pauperis complaints is to ensure that the deferred payment 

mechanism of § 1915(b) does not subsidize suits that prepaid 

administrative costs would otherwise have deterred.” Nagy v. 

FMC Butner, 376 F.3d 252, 257 (4th Cir. 2004). Dismissal of an 

action or appeal is appropriate when it lacks an arguable basis 
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in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). 

We review such dismissals for abuse of discretion. Nagy

In his informal brief, Jones contends that the claims 

in the instant case, though against some of the same parties, 

are not identical to the issues raised in No. 09-2375. 

Additionally, in his notice of appeal, Jones argued that, though 

captioned against six defendants in their individual capacities, 

his action lay instead against Everything Casual, Inc., a 

corporation formerly known as Sternheimer Bros, Inc., which 

operated the now-defunct A & N stores in Virginia.

, 376 

F.3d at 254.

However, regardless of Jones’s purported intent, the 

complaint in its current form raises allegations against several 

former employees of Everything Casual, Inc., in their individual 

capacities. The district court found that Jones’s complaint 

sought “relief from individual employees for alleged violations 

of federal statutes . . . [that] afford[] relief only against 

employers.” This statement is not entirely accurate. To the 

extent that the finding applied to Jones’s claims under Title 

VII, the ADA, and the ADEA, the district court was correct, as 

these statutes do not provide for causes of action against 
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defendants in their individual capacities.*

 See McNeal v. 

Montgomery County, Md., 307 F. App’x 766, 775 n.6 (4th Cir. 

2009) (argued but unpublished) (“[O]nly an employer, not an 

individual employee, may be held liable under the ADEA.”); Baird 

ex rel. Baird v. Rose

Conversely, whether the FMLA imposes liability on 

employee supervisors in their individual capacities is an open 

question in this circuit, as we have expressly declined to 

decide this issue when it has arisen before us. 

, 192 F.3d 462, 472 (4th Cir. 1999) 

(finding that neither Title VII nor the ADA provides for actions 

against individual defendants for violation of its provisions).

See Lizzi v. 

Alexander, 255 F.3d 128, 136 n.1 (4th Cir. 2001) (“[W]e do not 

address the question of whether, in an action against a private 

employer, an individual supervisor is subject to personal 

liability for violating the FMLA.”); Hukill v. Auto Care, Inc.

 * Regardless of whether the Equal Pay Act imposes liability 

upon employee supervisors, Jones entirely fails to allege any 

form of gender discrimination, so this claim is without merit. 

See 29 U.S.C. § 206(d) (2006).

, 

192 F.3d 437, 441 n.5 (4th Cir. 1999) (“The district court did 

not squarely address whether McGillicuddy was subject to 

individual liability under the FMLA. We note that this court 

has not addressed this issue and need not address it today.”). 

Further, at least two other circuits have found such liability 
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exists. See Mitchell v. Chapman, 343 F.3d 811, 827 (6th Cir. 

2003) (“As under the FLSA, individuals such as corporate 

officers “acting in the interest of an employer” are 

individually liable for any violations of the requirements of 

the FMLA.”); Darby v. Bratch

Accordingly, because this issue is an open question in 

this circuit, we find that the district court abused its 

discretion in summarily dismissing Jones’s action as frivolous. 

However, in so holding, we express no opinion as to the 

viability of Jones’s claim. Indeed, the fact that the district 

court’s frivolity dismissal was in error is not to say that 

there is any basis to Jones’s claim, or that dismissal for 

failure to state a claim would have been inappropriate. 

, 287 F.3d 673, 681 (8th Cir. 2002) 

(noting that private sector employees are subject to liability 

under the FMLA for actions taken “in the interest of an employer 

to any employees of such employer.”).

See

Neitzke v. Williams, 490 U.S. 319, 328 (1989) (“When a complaint 

raises an arguable question of law which the district court 

ultimately finds is correctly resolved against the plaintiff, 

dismissal on [Federal] Rule [of Civil Procedure] 12(b)(6) 

grounds is appropriate, but dismissal on the basis of 

frivolousness is not.”). Should the Defendants file a dismissal 

motion following remand, the district court may well reach the 
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conclusion that the FMLA does not provide for a cause of action 

against corporate officers in their individual capacities, and 

may thus dismiss on that basis, without contravening our present 

holding. However, in such an instance, the dismissal would be 

for failure to state a claim following a Rule 12(b)(6) motion, 

not upon a sua sponte

Accordingly, we grant leave to proceed in forma 

pauperis, affirm the district court’s judgment as to Jones’s 

claims under Title VII, the ADEA, the ADA, and the Equal Pay 

Act, vacate the district court’s judgment as to Jones’s FMLA 

claim, and remand in order to allow Jones to file his complaint 

under the FMLA. Additionally, as noted above, Jones has 

indicated some confusion in his notice of appeal and informal 

brief as to whether he intended to proceed against corporate 

entities or individual defendants in this action. Therefore, we 

advise Jones that, under Fed. R. Civ. P. 15(a)(2), he may 

request leave of court to amend his complaint to substitute or 

include whatever intended Defendants he may wish to add to his 

complaint. However, we express no opinion on the likely outcome 

or merits of any such request. We dispense with oral argument

finding that Jones’s claim was wholly 

frivolous. Here, the fact that supervisory liability under the 

FMLA is an open question in this circuit necessarily renders the 

district court’s frivolity dismissal in error.
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because the facts and legal contentions are adequately presented 

in the materials before the court and argument would not aid the 

decisional process.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED