UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Paul H. Cossette

v. Civil No. 05-cv-328-PB

Mike Johanns, Secretary,

United States Department

of Agriculture

O R D E R

Paul Cossette’s complaint (document no. 1), filed pro se and

in forma pauperis, alleges that the United States Department of

Agriculture (“DOA”) had violated Cossette’s rights under the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq.. On

February 9, 2006, I issued a Report and Recommendation (document

no. 5) recommending that the complaint be dismissed on the basis

that it was untimely filed. In my Report and Recommendation, I

noted that the complaint made no reference to any efforts at

administrative exhaustion of the claims, and I thus presumed that

Cossette had opted to pursue his suit in this Court directly, as

is permitted by statute, and that Cossette had foregone his

option to seek administrative relief. In his objection to my

Report and Recommendation (document no. 6), Cossette states for

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the first time that prior to filing his complaint here, he timely

sought administrative relief from the United States Equal

Employment Opportunity Commission (“EEOC”). Cossette has

attached his “right to sue” letter from the EEOC, which

demonstrates not only that his administrative claim was timely

filed, but that his complaint before this Court was timely filed. 

As discussed in my February 9 Report and Recommendation,

Cossette alleges that he was not selected as a finalist for a

Resource Assistant position within the DOA, on the basis of his

age. The ADEA provides that “it shall be unlawful for an

employer ... to fail or refuse to hire . . . any individual or

otherwise discriminate against any individual . .. because of

such individual’s age.” 29 U.S.C. § 623(a)(1). I find that

Cossette has sufficiently alleged in his complaint that he was

denied a promotion to a position for which he was the most

qualified applicant solely on the basis of his age to allow this

action to proceed. 

Without commenting on the merits of the complaint, I find

that plaintiff has stated a claim upon which relief may be

granted. Accordingly, I order that the complaint be served upon

Defendant. The Clerk’s office is directed to issue the necessary

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summons form and forward to (i) the United States Attorney for

the District of New Hampshire, (ii) the Attorney General of the

United States, and (iii) the United States Department Of

Agriculture, by certified mail, return receipt requested, the

summons and copies of the Complaint (document no. 1), my February

9, 2006 Report and Recommendation, and this Order. See Fed. R.

Civ. P. 4(c)(2) and 4(i). 

Defendant is instructed to answer or otherwise plead within

sixty days of service. See Fed. R. Civ. P. 12(a)(3). 

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the Defendant by delivering or mailing the materials to the

Defendant or the Defendant’s attorney(s), pursuant to Fed. R.

Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 17, 2006

cc: Paul H. Cossette, pro se

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