A Collection of James W. Cushing, Esq.’s Interviews and Citations

Writing for various legal publications have become a big part of my career over the years. In fact, this very blog began as a place for me to collect all of my writings. Now that I have developed a substantial corpus of material for people to read, I now receive, on occasion, the opportunity to either share my thoughts on the law in an interview, or have my writing cited in other people’s writing as an authority. I have reached a point where it has happened enough to warrant creating a collection of when I have been cited or interviewed, and that collection is below:

• James W. Cushing, Esquire is quoted here: 3rd Circ. Won’t Reinstate VA Worker’s Sex, Age Bias Suit
• James W. Cushing is quoted here: Philadelphia Court of Common Pleas Pulls Back on Remote Proceedings, Sets Deadline
• Marriage in the Time of Internet Ministers: I Now Pronounce You Married, But Who Am I To Do So?
• Unemployment Cheats Raked in $16.5 Billion Last Year
• Unemployed and Retired? You, too, Can Double Dip.

James W. Cushing, Esquire is quoted here: 3rd Circ. Won’t Reinstate VA Worker’s Sex, Age Bias Suit

The Third Circuit backed the U.S. Department of Veterans Affairs‘ defeat of a patient safety manager’s suit claiming she was held to higher standards than colleagues because she’s a woman in her 60s, ruling Thursday she failed to show the agency’s actions were marred by bias.

In a six-page opinion, a unanimous three-judge panel affirmed summary judgment in favor of the federal government on Florence Kocher’s claims of sex, bias, age discrimination and retaliation under Title VII and the Age Discrimination in Employment Act.

Although a trial court improperly used the federal statutes’ private sector anti-discrimination and anti-retaliation standards when it tossed the case, Senior U.S. Circuit Judge Theodore A. McKee wrote that the panel would uphold summary judgment because Kocher still couldn’t support her claims under the federal sector provision of Title VII or the ADEA. According to the opinion, under the federal sector provision, “a personnel action must be made ‘untainted’ by discrimination,” but Kocher presented no evidence that she was treated differently from her co-workers.

“Rather, she generally contends that the VA’s actions towards her ‘can only be explained by discrimination, given their highly unusual nature,'” Judge McKee wrote. “We will affirm the district court’s grant of summary judgment on Kocher’s discrimination claims because Kocher fails to identify any evidence to contradict the district court’s conclusion that the VA’s actions were untainted by discrimination.”

Kocher, who has worked at the VA Medical Center in Philadelphia since October 2013, sued the Department of Veterans Affairs in February 2021.

According to her complaint, Kocher was given a poor performance review in July 2018 and placed on a performance improvement plan in August 2018, though she said she hadn’t previously been aware of any issues with her work. Kocher said the PIP was replaced with performance counseling after she complained through her union about the discipline; however, when she received her next performance evaluation in January 2019, she said it was still unfairly critical, and her supervisor initially refused to attach her self-evaluation to the official report.

Additionally, the January 2019 performance review mentioned that Kocher had a heart attack while working at the medical center, which was a violation of her privacy, according to the complaint. The VA agreed to remove the heart attack reference from the report in early February 2019, but Kocher said it took until the end of the month for that to happen, meaning private medical information was visible to the general public for almost two months.

However, U.S. District Judge Timothy J. Savage tossed the suit in December 2022, ruling that Kocher hadn’t suffered an adverse employment action and failed to show the VA’s actions were based on her age or gender.

Representatives for Kocher told Law360 on Thursday they’re conferring with Kocher about whether to ask the U.S. Supreme Court to review the case.

“It’s unfortunate because she is the victim of systematic mistreatment, and the judge just didn’t see it,” James Cushing of the Law Office of Faye Riva Cohen PC said.

A representative of the Department of Veterans Affairs declined to comment.

Senior U.S. Circuit Judge Theodore A. McKee and U.S. Circuit Judges Patty Shwartz and Cindy K. Chung sat on the panel for the Third Circuit.

Kocher is represented by James Cushing and Faye Riva Cohen of the Law Office of Faye Riva Cohen PC.

The U.S. Department of Veterans Affairs is represented by Gregory B. David and David A. Degnan of the U.S. Attorney’s Office for the Eastern District of Pennsylvania.

The case is Florence Kocher v. Secretary, U.S. Dept. of Veterans Affairs, case number 23-1108, in the U.S. Court of Appeals for the Third Circuit.

By Patrick Hoff (and editing by Emma Brauer) and published on December 7, 2023 in Law360 and can be found here.

James W. Cushing is quoted here: Philadelphia Court of Common Pleas Pulls Back on Remote Proceedings, Sets Deadline

The Philadelphia Court of Common Pleas is scaling back some of its remote technology use, with its three divisions all making moves to hold more proceedings in person.

Both the family and Orphans’ divisions recently vacated pandemic-era orders expanding advanced communication technology use, and First Judicial District spokesperson Gabriel Roberts said modest changes are coming for the trial division as well.

“Some civil judges have had the option of holding their non-jury trials either in-person or remotely,” Roberts said. “There will no longer be a remote option beginning Nov. 1.”

And Roberts said the trial division is not set to enter an order regarding the change, but rather the shift will be a small alteration to how the division operates.

Roberts was unable to say why the Common Pleas Court’s three divisions are revisiting their ACT policies around the same time.

The orders from the family and Orphans’ divisions both say they were entered consistent with the terms of the Pennsylvania Supreme Court’s Order No. 553, which directed the Unified Judicial System to return to pre-pandemic status and fully open and staff the courts, effective July 6, 2021.

Until recently, Philadelphia continued to receive special authorization to suspend state and local rules restricting the use of ACT, but the latest order granting authorization expired Sept. 6.

The family court’s Sept. 28 order, which returned all child and spousal support conferences to in person, appears to bring about the most dramatic shift among the three divisions’ changes. Previously, those proceedings had been conducted exclusively via ACT, per a June 2021 order.

Family lawyers who spoke with The Legal Intelligencer said they were surprised by the move. They said while telephonic conferences have limitations in certain circumstances, they provided greater accessibility to persons who otherwise would have difficulty accessing the court.

“They were really getting a lot of people to respond and to appear because it is by Zoom,” Carolyn Mirabile, a partner at Weber Gallagher Simpson Stapleton Fires & Newby, said. Prior to the pandemic, Mirabile said, Philadelphia saw a high rate of no-shows.

She said face-to-face interaction often better facilitates resolutions, but remote technology is a more efficient option for first-level conferences.

James Cushing, a family lawyer at the Law Office of Faye Riva Cohen, said the typically brief nature of child support conferences makes them well-suited for being conducted over phone or videoconference and he’s disappointed to lose the option.

Like Mirabile, Cushing said the convenience of appearing electronically not only saved time for lawyers but also seemed to prompt better attendance among the parties involved. He reasoned that requiring lawyers and their clients to appear in court for simple conferences will drive up attorneys’ billing and require the parties to miss work.

“For the clients who are paying hourly, representation will now be a lot more expensive for what amounts to a fairly simple and straightforward procedure,” Cushing said. “This sort of diminishes the access to representation for low income clients.”

‘Call Me Old Fashion’

Philadelphia family court spokesperson Martin O’Rourke said the Sept. 28 order, signed by family division Administrative Judge Margaret Murphy, was in response to technological limitations and updated COVID-19 guidelines in the FJD.

O’Rourke said the court still maintained the authority to conduct telephonic conferences. But inefficiencies in remote document sharing and challenges in ensuring both parties could participate ”undermined the court’s ability to establish and enforce support orders, which as a result negatively impacted the court’s performance measures.”

The Orphans’ division Oct. 4 order allowed more leeway than the family division’s, directing that the Orphans’ Court will “resume normal in-person operations” while still allowing individual judges discretion to conduct proceedings remotely so long as they themselves are onsite at the court.

Orphans’ Court Administrative Judge Sheila Woods-Skipper, who signed the order, declined to comment.

Timothy Holman, a trusts and estates lawyer with Smith Kane Holman, said the provision allowing judicial discretion leaves the future of ACT in Orphans’ Court unclear.

“Although I don’t know how any given judge will comply with this order,” he explained, “I suspect that they may continue to have certain procedures such as the call of the audit list, they may hold that virtually.”

Holman said he has appreciated the efficiency that ACT brings, however, he preferred that the  trials and hearings to occurred in person.

“I adjusted very well to virtual trials, but call me old fashion,” he said. “I’m a big believer in-person trials and in-person meetings with other lawyers.”

By Aleeza Furman and published in The Legal Intelligencer on October 7, 2022 and can be found here.

Marriage in the Time of Internet Ministers: I Now Pronounce You Married, But Who Am I To Do So?

I am proud to say that I have been cited as an authority in a law review article in the University of Miami Law Review (Volume 63, Number 3, April 2010) entitled Marriage in the Time of Internet Ministers: I Now Pronounce You Married, But Who Am I To Do So?  Specifically, check out footnote 222 of the aforesaid article which you can find here and you will see the cite to me and my article “I Now [Cannot] Pronounce You Man and Wife” (which you can see here).

The issue of both the law review article and my article centers on the Pennsylvania legal qualifications/criteria of/for someone who presides at weddings in Pennsylvania and who (or what sort of “clergy”) may or may not meet those qualifications.

Unemployment Cheats Raked in $16.5 Billion Last Year

I was quoted in the The Fiscal Times September 22, 2011 article Unemployment Cheats Raked in $16.5 Billion Last Year.

If you do not feel like reading the article, the nuggets of wisdom I shared were these (quoted directly from the article):

“Lying to the government is much easier when a person’s only contact with the state agency is online or on the telephone, Cushing said.  ‘It’s much easier to file things in a fraudulent way because the gatekeeper is even more compromised online.”’

and

“State unemployment agencies assume what a claimant says is true unless an employer objects, said James Cushing, a Pennsylvania attorney specializing in unemployment compensation.  ‘It’s not unusual for two or three months to go by where a claimant receives payments for benefits, and then at a referee’s hearing it gets determined that they were never eligible to begin with,”’ Cushing said.

Unemployed and Retired? You, too, Can Double Dip.

I was quoted in the The Fiscal Times August 17, 2011 article Unemployed and Retired?  You, Too, Can Double Dip.  

If you do not feel like reading the article, the nuggets of wisdom I shared were these (quoted directly from the article):  “There is no conflict between collecting a Social Security pension benefit and unemployment compensation at the same time as long as each agency is apprised of the income received from the other,” says James Cushing, a Pennsylvania lawyer specializing in unemployment compensation.