Lyn Wilson was employed as a correctional officer with the California Department of Corrections and Rehabilitation. Wilson worked at the Correctional Training Facility in Soledad. In April 2007, Wilson began experiencing “massive” headaches. In May 2007, Wilson consulted her primary care doctor, Dr. Hoffman. Hoffman diagnosed migraine and prescribed a series of medications, none of which relieved the headaches. Hoffman also suggested that Wilson see a doctor about using marijuana as a treatment.
Wilson was aware that California voters had approved a law which decriminalized the use of medicinal marijuana in California. Wilson obtained a state-issued cannabis card and started using marijuana toward the end of May 2007. She inhaled the drug in vaporized form three times a week after work. The marijuana made the headaches better so she continued to use it.
On July 2, 2007, Wilson was selected at random to submit a urine sample for drug testing. The test was positive for marijuana. Wilson was removed from her correctional officer position on July 17, 2007 and placed in the mailroom. Wilson knew the transfer was related to her positive drug test. Nevertheless, she continued taking the marijuana because it was still working to relieve her headaches. Up to that point Wilson had not been given a chance to explain why she tested positive and she believed that once she was able to do so the discipline would be rescinded. Wilson stopped using the drug in September 2007, when it no longer relieved her symptoms.
When the Department fired Wilson, she appealed to the State’s Personnel Board. An administrative law judge (ALJ) found Wilson to be credible and concluded that she did not believe at the time she was using the drug to treat her headaches that medicinal use of marijuana was a violation of Department policy. The ALJ recommended revocation of the disciplinary action. Though the Board itself approved the ALJ’s findings, the Department refused to reinstate Wilson, leading to a court case.
The California Court of Appeals ordered Wilson’s reinstatement. The Court commented that “there was no evidence that Wilson was incompetent, that she had neglected her job duties, or that her marijuana use had caused any discredit to the Department. The principal issue for the Board was whether Wilson’s marijuana use was a willful violation of the Department’s drug-free workplace policy. There is no question that Wilson violated the policy. But that alone is not cause for discharge unless the violation was willful.
“The ALJ believed Wilson when she said that she did not think she was violating the policy and that she had been unaware of any clarification of the policy until after she ceased her use of marijuana. The ALJ recognized that Wilson continued to use marijuana after she knew that she was being disciplined for having tested positive. The fact that she readily admitted that she continued to use the drug suggested to the ALJ that she honestly believed that her use was not a violation of the Department policy. If she did not know the policy prohibited medicinal use of marijuana, her violation was not willful.
“The Department argues that there is no substantial evidence to support the finding that Wilson was credible. But credibility is the determination made by the finder of fact that the witness is telling the truth. A reviewing court defers to the factfinder’s credibility determination because the reviewing court has only the written record before it. It is in no position to assess demeanor, tone of voice, or any other matter that only those present at the hearing can assess. Thus, the reviewing court does not make a credibility determination; that is the exclusive purview of the factfinder. It follows that we must reject the Department’s argument that the ALJ erred in believing Wilson.”
Wilson v. California Department of Corrections and Rehabilitation, 2012 WL 4127322 (Cal. App. 6 Dist. 2012).