vs. ) CASE NO. 86-3033
BETTY P. TIDWELL, )
Respondent. )
The issue in this case is whether Respondent, Betty P. Tidwell, filed a fraudulent worker's compensation claim that she injured her back on the job. Petitioner, School Board of Polk county, alleges that Tidwell in fact injured herself in a motorcycle accident unrelated to her job.
Final hearing in this case first was scheduled for October 16, 1986, but the parties jointly moved for a continuance, which was granted. Efforts to reschedule the final hearing later in October were unsuccessful due to counsel's calendar conflicts. Final hearing was held in Lakeland, on November 25, 1986.
The parties asked for and received until December 22, 1986, in which to file proposed recommended orders.
For Petitioner: C. A. Boswell, Jr., Esquire, of Bartow For Respondent: Ronald N. Toward, Esquire, of Bartow
Respondent, Betty P. Tidwell, has been a teacher for 29 years, the last
11 at Padgett Elementary School in Polk County. On May 7, 1985, Tidwell appeared for work to perform her job of teaching children with learning disabilities.
Tidwell's day at work on May 7, 1985, began in the teacher's lounge where she prepared for the day's teaching between approximately 8:00 a.m. and 8:30 a.m. At approximately 8:15 a.m., Tidwell's volunteer aide, Terry Jones, mother of one of Tidwell's pupils, joined Tidwell in the lounge.
At approximately 8:30 a.m., Tidwell and Jones left the lounge and began the school day by walking from regular class to regular class to pick up the children in her SLD class and bring them to her classroom, which was located in one half of a portable building. During the morning, Tidwell and Jones went about their normal teaching activities.
At some point in the morning, Tidwell received word that two boxes of high interest, low reading skill level books she had ordered for her personal library in her classroom for use by her pupils had arrived and were in the
administrative offices. Tidwell and one of her pupils walked to the office, picked up the two boxes of books, and carried them back to her classroom.
At lunch time at approximately noon, Tidwell and Jones walked to the school cafeteria to buy their lunches and bring them back to her classroom, as they usually do. Tidwell sat at her desk, and Jones sat at a round table in front of Tidwell's desk.
While Tidwell ate she began unpacking, separating and numbering the new books so that they would be ready for her pupils to check out and use by the end of Tidwell's 30-minute lunch break. Rushing to get the job done while she ate, Tidwell stood up and turned to shelve some of the books. She tripped over a yardstick that had fallen to the floor and become lodged between Tidwell's file cabinet near her desk and the bookcase. As she fell, Tidwell reached for a book cart, which began to roll away from her. Tidwell sharply twisted her back as fell to the floor in a sitting position, back to the bookcase.
Tidwell was in a great deal of pain as a result of the fall. Jones helped her to her feet and back into the seat at Tidwell's desk. Tidwell sat in pain for a few minutes, her head on her desk. She then concluded that her lower back pain was getting worse and that she needed medical attention. Jones helped Tidwell to the school health clinic, where Joseph Gillen, the principal of the school, saw Tidwell's condition and called an ambulance to take Tidwell to the hospital.
At the hospital, Tidwell was treated for lower back injury from the fall. Tidwell's doctor prescribed medication, bed rest and heat therapy. Tidwell was out of work for two weeks.
Tidwell filed a worker's compensation claim for medical expenses and lost wages resulting from the fall in her classroom. The claim was not fraudulent.
Shortly after the fall, Terry Jones told school officials that Tidwell had told her and another woman, Cheryl Stephenson, the morning of May 7, 1985, in the teacher's lounge that she had hurt her back in a motorcycle accident when the bike turned over while Tidwell was turning a corner. She also testified that Tidwell told her that she (Tidwell) planned to lie to school officials for insurance purposes that she hurt her back in the classroom. Finally, she told the school officials that she did not witness the fall in the classroom which injured Tidwell's back.
Cheryl Stephenson related that she noticed Tidwell walking slowly and carefully in the teacher's lounge on the morning of May 7, 1985. Asked if she was alright, Tidwell told Stephenson within hearing range of Jones something to the effect that her back was sore from riding her motorcycle the day before (actually, two days before on Sunday, May 5, 1985). Tidwell joked that at her age she finally got a motorcycle and the first thing she does is turn it over. Stephenson interpreted Tidwell's statements to mean Tidwell had an accident on the motorcycle and hurt her back, and she told this to school officials.
As a result of Jones' and Stephensons' statements, the School Board opposed Tidwell's worker's compensation claim. Also, on June 10, 1986, the School Board approved the School Superintendent's recommendation that Tidwell be terminated as a teacher for "misconduct in office, i.e., claiming an injury on the job when she was actually injured away from the job." Tidwell denied the charge and initiated this proceeding.
In fact, Tidwell did not have a motorcycle accident on May 6 or May 5, 1985, or any other time. She was riding her motorcycle with friends the weekend of May 5, 1985, and her shoulders and upper back were tired and sore from it on May 6 and 7, 1985. Tidwell is prone to sore shoulders and upper back from physical activity for several reasons. First, Tidwell is a 55 year old woman of slight build. Second, Tidwell underwent a radical mastectomy (including removal of muscle tissue) for cancer in 1971. Third, Tidwell underwent surgery for a hiatal hernia in 1981. When Tidwell told Stephenson and Jones on May 7, 1985, that her back hurt and that she was sore from riding her motorcycle she was referring to the soreness in her shoulders and upper back that was causing her to walk slowly and carefully in the teacher's lounge. While uncomfortable, the pain was not enough to prevent Tidwell from going about her normal activities that morning, much less enough to hospitalize her.
However, on Sunday, May 5, 1985, Tidwell was involved in an incident with her bike which explains Stephenson's testimony. While walking her bike from its parking place at a Lakeland area park before getting on it or even starting the engine, Tidwell lost her balance and let the bike fall to the ground. A male companion picked the bike up for her. This incident did not result in any injury to Tidwell's back but did result in the story Tidwell tried to tell Stephenson, who misunderstood and thought Tidwell was saying that the bike turned over while Tidwell was riding it.
Tidwell's relating of the May 5, 1985, incident to Stephenson within earshot of Jones could have explained Jones' testimony which Stephenson corroborated except that Jones went on to also testify that Tidwell confided to her Tidwell's alleged plan to defraud the School Board and that Tidwell's fall in the classroom never took place. The latter two parts of Jones' testimony directly contradict Tidwell, requiring a direct decision who is telling the truth, Jones or Tidwell.
It is recognized that, on the face of it, Tidwell had an obvious motive to testify as she did, even if untruthful: to win this case and keep her job. But Tidwell gave the impression that she was more concerned with defending her personal integrity, which had come under attack, than with winning the case per se. And she seemed more concerned with being able to get back into the classroom to teach children, a job that gives her enjoyment and fulfillment, than with the "job," per se, and the financial remuneration that goes with it.
It actually is harder to determine Jones' motivation for being untruthful. The evidence suggested, however, that Jones might have harbored personal animosity against Tidwell. Jones refused to answer questions on cross- examination asking whether she was romantically involved with one of the men teaching Tidwell to ride a motorcycle. If she was romantically involved with the man, she may have been jealous and angry at Tidwell for Tidwell's relationship with the man. The evidence also suggested that Jones believed she could manage to accuse Tidwell without having to confront Tidwell face to face and without having to submit to a hearing process that would determine who was telling the truth.
More important to the resolution of the factual dispute in this case are extrinsic facts over which neither Tidwell nor Jones have control.
According to Jones, Tidwell never fell and hurt her lower back in the classroom. Jones' testimony is inconsistent with the facts: (1) the medical evidence was that Tidwell did in fact suffer from a muscle contusion of the
lower back; and (2) Tidwell was able to function normally (albeit with some discomfort in her shoulders and upper back) on the morning of May 7, 1985, but was hospitalized in the afternoon, was bedridden for a week and unable to work for two weeks.
Jones' testimony that Tidwell actually fell off her bike while negotiating a turn also does not square with the medical evidence. Medical examination of Tidwell disclosed none of the surface cuts, abrasions and bruises one would expect to see in a patient involved in a motorcycle accident of that sort.
Also, at one point in Jones' testimony, she says Tidwell was alone when the alleged accident happened; at another point, she says "somebody helped her get her bike back up."
It is improbable that Tidwell would be discussing an away-from-work motorcycle accident with Jones and Stephenson or anyone else in the teachers' lounge on May 7, 1985, if she were planning to defraud the School Board that day by fabricating an on-the-job injury and filing a fraudulent worker's compensation claim for injuries actually arising out of the motorcycle accident. It is even less probable that Tidwell would disclose her alleged fraudulent scheme to anyone, much less to Jones, much less within earshot of Stephenson.
Finally, if Tidwell were planning to attempt to defraud the School Board, as Jones says, there would be no reason to first tell a lie to Jones and Stephenson that the away-from-the-job accident was more serious than it really was.
For these reasons and others, including the apparent candor and demeanor of the witnesses, Tidwell's testimony is accepted as truthful and Jones' testimony is rejected as untruthful.
There was evidence that the charges, if true, would impair Tidwell's effectiveness in the school system. If not true, the charges theoretically could impair Tidwell's effectiveness, but the evidence was that they probably would not. Tidwell continued to work effectively for the remainder of the 1984/1985 school year, had her contract renewed for the 1985/1986 school year, worked effectively for the entire 1985/1986 school year and was recommended for renewal of her contract for the 1986/1987 school year before she was terminated.
CONCLUSIONS OF LAW
Section 231.36(4)(c), Florida Statutes (1985), authorizes termination of a teacher for misconduct in office.
Rule 6B-4.09(3), Florida Administrative Code, defines "misconduct in office":
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.01, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.06, F.A.C.,
which is so serious as to impair the individual's effectiveness in the school system.
Rule 6B-1.01, Florida Administrative Code, provides in pertinent part:
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest
degree of ethical conduct.
Rule 6B-1.06, Florida Administrative Code, provides in pertinent part:
(2) Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or the
other penalties as provided by law.
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
(g) Shall not submit fraudulent information on any document in connection with professional activities.
In this case, the charge of misconduct in office was not proved. Misconduct was not proved; nor was serious impairment of effectiveness proved. Even if serious impairment alone were proved to have resulted from the false charge of misconduct against Tidwell, termination would not be justified. Baker
v. School Board of Marion County, 450 So.2d 1194 (Fla. 5th DCA 1984). Cf. also Sherburne v. School Board of Suwannee county, 455 So.2d 1057 (Fla. 1st DCA 1984)(serious impairment of effectiveness from community knowledge of alleged sexual conduct cannot alone justify teacher discipline if the community knowledge resulted from the school board's charges being made public).
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, School Board of Polk County, enter a final order dismissing the charges against Respondent, Betty P. Tidwell, and reinstating the previous renewal of her contract for the 1986-1987 school year.
RECOMMENDED this 15th day of January, 1987, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3033
These rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985). Although neither party numbered the paragraphs of their proposed findings of fact (labeled "Findings Of Fact" and "Factual Conclusion") the paragraphs will be assigned consecutive numbers for purposes of these rulings.
Ronald N. Toward, Esquire Post Office Box 226 Bartow, Florida 33830
Honorable Ralph D. Turlington Commissioner of Education
John A. Stewart Superintendent of Schools Post Office Box 391 Bartow, Florida 33830
