FIRED CITY EMPLOYEE PURSUES PROP. 215 DISCRIMINATION SUIT

EUREKA -- 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."