                             UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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.
Unpublished opinions are not binding precedent in this circuit.




                                2
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.,



                                               3
Inc., 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.

             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.

             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



                                              4
in law or fact.        Neitzke v. Williams, 490 U.S. 319, 325 (1989).

We review such dismissals for abuse of discretion.                           Nagy, 376

F.3d at 254.

              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.

              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




                                            5
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,   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).

              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.                            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.,

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

       *
       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).



                                               6
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, 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.”).

               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.                                       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



                                                  7
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 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.

            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



                                     8
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




                               9
