Fired city employee pursues Prop. 215 discrimination suit

 

Kimberly Wear, The Times-Standard

February 13, 2005

 

Fired city employee Logan Shawn Dake said he's done nothing wrong by using medical marijuana during his off hours and he just wants to get back to caring for lawns in city parks and cemeteries.

 

   The former maintenance worker has gone before the City Council in recent weeks to plead his case, saying he's trying to save them from a potentially expensive lawsuit for discrimination based on a medical condition.

 

   "The longer it goes, the more it is going to cost and it will be no one's fault but the city's," Dake told the council last month. "All I want is my job back. This is a fight the city cannot win."

 

   Dake is also asking for back pay.

 

   A discrimination complaint Dake filed against the city has been accepted for investigation by the state Department of Industrial Relations labor division, according to a letter he provided the Times-Standard.

 

   The city fired Dake in August 2004 after he failed a mandated drug test. He had received positive employee reviews before the test, which was required for a promotion. Dake said he told his supervisors he wouldn't pass because he used medical marijuana with a doctor's prescription. They told him to take the test anyway, he said.

 

   City Manager David Tyson confirmed Dake is a former employee, but said he could not comment on specifics. In general, city employees on certain prescription medications are prohibited from operating equipment until they are finished with the drug, he said.

 

   Tyson said the city follows Department of Transportation guidelines regarding driver license requirements and does not have a policy specifically addressing medical marijuana. Neither does the city of Arcata or Humboldt County, said representatives at the respective agencies.

 

   The lack of such a policy was noted in a ruling on Dake's case by the city's Personnel Board.

 

   Missing work

 

   Not having a job has changed his life, Dake said. He said the crews he worked with are his only family and he wants to return to the job he waited years to land.

 

   "I feel like less of a man every day I don't go to work," said Dake, a stocky man with sandy blond hair. "I don't want to get emotional about this, but this is my life we're talking about here. I have no family and I miss the guys I worked with something fierce."

 

   Dake said he loved the job which he had been eyeing since beginning as a part-time city employee in 1986.

 

   "The day I started I decided I wanted the job I got one and a half years ago, " Dake said. "I hung in all that time only to get it and have it taken away."

 

   A performance evaluation done in August 2003 states he was rated above standard and supervisors noted they were counting on Dake to help train new staff.

 

   Dake, who turns 50 in April, said he uses medical marijuana for his arthritis, but not every day. He rotates it with a pain medication to help him sleep.

 

   The glitch came when the city had Dake take a drug test as part of the process for receiving a Class B driver license, which it required for his promotion. Dake said he was not told he would have to take a drug test or get the license when the city originally offered him a position.

 

   Later notification letters included that information, according to documents Dake provided.

 

   Dake said the city made exceptions for some workers and he should also receive a medical exemption because he doesn't need a commercial license to do his former job.

 

   Legally speaking

 

   California voters legalized medical marijuana in 1996 with the passage of Proposition 215, which allows individuals with a doctor's recommendation to cultivate, use and obtain the drug. Dake provided the city a copy of his May 2004 prescription.

 

   Eugene Denson, a Humboldt County attorney who specializes in medical marijuana cases, said Dake appears to have a medical discrimination case based on limited information he has about the firing.

 

   Denson said he handled a similar case in Trinity County where an individual that used medical marijuana was applying for a job that required a drug test. In that case, Trinity County ended up making an exception after Denson wrote a letter.

 

   Denson said many employers haven't revised their policies to address Prop. 215 despite the law's passage nearly 10 years ago.

 

   "I can't think of any other medicine where this comes up," he said. "This doesn't happen where someone calls up and says, 'I'm taking Vicodin and I was fired.'"

 

   Paper trail

 

   Dake said he has also filed a complaint with the state Department of Fair Employment and Housing. A representative there said the agency could not comment on individual cases. Tyson said he has not seen a complaint from that department.

 

   Before Dake took his discrimination claim to the state level, he went before the city's Personnel Board in late October 2004. A week later the board found the city followed its policies in Dake's termination and he did not meet the requirements for advancement to the Maintenance Worker II position.

 

   The board's conclusion said the issue before it was a "narrow one" and Dake's work performance in all other respects was not implicated by the ruling.

 

   "The board would also like to note that this matter involves issues surrounding the use of medical marijuana," the conclusion reads. "There was testimony indicating that the city of Eureka has no employment policies concerning the use of medical marijuana. This board has no authority to create any such policy, however, it would like to suggest that the city consider developing a medical marijuana policy."

 

   For now, Dake is waiting for his complaints to work through the system. The city had offered him a demotion back to a part-time, minimum wage position rather being fired but he refused.

 

   "They figured I would never fight this, that I would go away," Dake said. "However, it's grown by leaps and bounds. I just can't wait for the day I can walk back in the work room. When things are finally righted, I will feel good."