Tireless Accountability: Legal Justice for NYCHA Residents Suffering from Asthma in Unsafe Homes

In December 2013, residents of NYC public housing teamed up with two NGOs, Manhattan Together and South Bronx Churches (both of whom specialize in community organizing and advocacy)[i], as well as the National Resources Defense Council. Together, these parties filed a class-action lawsuit against the New York Public Housing Authority (NYCHA) in a New York District Court for excessive mold in residential cases. The case, Baez et. al v NYCHA, shows that the legal system, can, in some cases, provide forms of justice. However, in its framing of the plaintiffs’ hardship, this case fails to acknowledge NYCHA’s role in actively disabling residents with asthma, and instead suggests that NYCHA simply compounding a pre-existing disability with negligence.

Filing, Facts, and Framework of the Case

The complaint against NYCHA describes the relevant class as “current and future residents of NYCHA who have asthma that substantially limits a major life activity and who have mold and/or excessive moisture in their NYCHA housing.”[ii] The NYCHA residents are doing something intentional and powerful in filing the suit this way. Firstly, there are practical reasons that the NRDC lawyers wouldn’t have filed as a class-action suit. The court documents note that it would be impossible to directly represent all members of the class, because there are over 400,000 NYCHA residents.[iii] Attempting to litigate each claim against NYCHA would take resources that plaintiffs do not have and would overwhelm the court system. More importantly, there is political significance to filing as a class. The named plaintiffs of the case, Maribel Baez, Felipa Cruz, and A.S. are not simply seeking reparations for their own bad experiences. Instead they want justice all people affected by NYCHA’s negligence. The complaint they filed is a moment in which disadvantaged citizens come together for justice and subsequently call to upend the organization in power.

Also notable is that Baez v NYCHA was filed as an injunction, meaning the plaintiffs were seeking procedural chances in NYCHA’s “policies and practices” on responses to complaints on mold and moisture. Their explicit demand was that NYCHA make “reasonable accommodations and modifications…to effectively abate mold and moisture in their apartments, which exacerbate [residents’] asthma symptoms.”[iv] While in any cases, monetary damages are indeed an effective way of helping victims of environmental injustice regain their social mobility, that is not what the plaintiffs wanted. Financial compensation cannot ever truly make up for harm done. Certainly, a payout would make these specific plaintiff’s lives easier, but how should the judge go about measuring how much to pay a person for a lifetime of chronic illness? Furthermore, damages represent a halting of justice: NYCHA would be off the hook once they paid out. The case filed against NYCHA in 2013 clearly shows that the plaintiffs are looking to the future to help alleviate the danger of living with asthma in poorly maintained public housing.

The legal statutes that the NDRC lawyers use to prove the illegality of NYCHA’s negligence make clear that this is a lawsuit about disability. There are four “statutory regulatory frameworks” used in support of the public housing tenants: the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, the Fair Housing Amendments Act of 1988 (FHAA), and the New York Human Rights Law.[v] Together they help to claim that NYCHA has violated its tenants’ rights as people with disabilities (asthma).

The Rehabilitation Act helps to make clear that asthma is disability, by defining disability as “a physical or mental impairment that substantially limits…breathing, sleeping, working, concentrating, [or] the operating of major bodily symptoms.”[vi] Asthma interferes with all five. (However the company’s disability accommodations policy deals only with wheelchair accessibility and makes not mention of any other kind of impairment.)[vii]

Title II of the ADA prevents government agencies from excluding impaired individuals from public resources and also mandates that they make appropriate and accommodating policy changes.[viii] The plaintiffs claim NYCHA indeed excludes them by failing to have separate maintenance standards for homes of asthmatic tenants.[ix] The FHAA helps to specify the legal framework for this case because it makes it illegal to discriminate in the sale or rental of housing against individuals with handicaps.[x] While the ADA serves to prove NYCHA’s negligence, it presupposes that residents came into these homes already with asthma. It penalizes NYCHA for failing to maintain maintenance standards, but only for the purposes of alleviating a preexisting condition. Similarly, the FHAA only mandates that NYCHA not discriminate, but the lawsuit makes no effort to suggest that NYCHA might be the cause of this ‘handicap.’

By incorporating the Human Rights Law, the lawyers strengthen their position further. This law makes clear that the state of New York has shown that it wants “to assure that every individual…is afforded an equal opportunity to enjoy a full and productive life…[F]ailure to provide such equal opportunity…menaces the institutions and foundation of a free democratic state and threatens the peace.”[xi] The inclusion of this law in the court documents raises the stakes. “Human Rights” is a phrase with far-reaching connotations. Human Rights Violations bring to mind Aparthaid, human trafficking, conditions of people in North Korea. Grouping the treatment of NYCHA residents in this semantic category proves and elevates the injustice. Similarly, the phrasing of the law itself (“menaces…a free democratic state”) makes clear that the actions of NYCHA in discriminating against disabled people have broad implications for the strength of the American government and democracy. What NYCHA might prefer to pass off as a case-by-case mold issue now presents as an institutional threat to functional democracy.

Anecdotal Testimony

This case was also an effective platform for residents’ testimony, because their personal experiences helped to prove NYCHA’s disability-based discrimination. The case is brought on behalf of a whole class, but three individuals, Maribel Baez, Felipa Cruz, and A.S., serve to represent so many New Yorker’s stories with their testimony in this complaint.

The testimony of Maribel Baez is the most thorough and compelling; here it is in part:

“11. On December 18, 2012, through my lawyers, I wrote to Office of Equal Opportunity. The letter informed NYCHA that I have asthma, that my asthma substantially limits my breathing, and the letter described the wet and moldy conditions in my apartment. The letter stated that there is a scientific link between mold and excess moisture and worsening of asthma The letter involved my rights under disability rights laws asked NYCHA to modify its repair and mold remediation policies and procedures as a reasonable accommodation and reasonable modification for my asthma so that I could live in an apartment free of excessive mold and moisture. The letter identified the specific modifications in policies and procedures that was requesting…

“15. NYCHA has not provided me with these accommodations and modifications.”[xii]

Baez’ Testimony upholds so many of the plaintiffs allegations of NYCHA discrimination against disabled residents. Her case exemplifies the agency’s negligence in responding to her complaint, thereby denying her — a disabled person — fair and equal access to housing. Without the legal framework of the ADA and FHAA, etc., in place, Baez’ and others’ testimonies might not be so directly linked to NYCHA’s illegal discrimination, not just negligence. The statutory framework helps to make clear that there are patterns of negligence that add up to institutional discrimination. Baez’ testimony makes clear those negligent practices.


Results of the Settlement

In December 2013, Judge William Pauley III, for the Southern New York District Court, found in favor of the plaintiffs. He mandated in a written settlement that NYCHA improve its responses to mold and moisture complaints. They were now required to respond to flooding within 24 hours, and normal mold/moisture complaints within seven days.[xiii] Judge Pauley also declared that the cause of mold be identified and fixed in every instance.[xiv] Though the settlement requires that NYCHA train its staff and change its policies, it leaves the agency only partially accountable for adhering to the new mandates. The Judge proposed a quarterly reporting system, in which the Housing Authority would send in a report of its responses to complaints in that period.[xv] Unfortunately, that system was insufficient. NYCHA’s discrimination only continued after December of 2013. Escalating headlines make that clear:

July 15, 2014: “Groups Prod NYCHA to Keep Promises on Mold”[xvi]

December 14, 2014: “Mold Still a Growing Problem for Hundreds of NYCHA Tenants a Year After Promise of Fixes”[xvii]

December 21, 2014: “1 in 3 city Housing Authority tenants say mold returns after NYCHA claims it’s fixed”[xviii]

March 14, 2015: “NYCHA not obeying order to fix mold in hundreds of units, tenants’ lawyers say”[xix]

April 23, 2015: “Tenants want judge to force NYCHA to clean up mold at public housing”[xx]

A Second Motion

In March of 2015, lawyers from the National Resources Defense Council, who had teamed up with public housing tenants and represented them a year and a half earlier decided to file a motion to enforce their previous settlement, the mandates of which NYCHA was not carrying out. Even after NYCHA was required to fix its procedures, Blanche Moore, who lives in public housing in East Harlem, said, “They just came and painted over [the mold]. They said to keep the [bathroom] vent…cleared out.”[xxi] The city’s own comptroller even admitted that the agency is “woefully unprepared” to deal with such large-scale home damage.[xxii]

Public outcry was widespread and forceful, as one video of a protest shows. Churches and NGOs banded together. Scores of residents hold sings and chant, as various people stand at a podium to deliver fiery speeches against NYCHA.

In response to the requests from the plaintiffs, in December 2015, Judge Pauley released a new order for NYCHA. He appointed a special master to oversee the agency’s response to complaints of mold. The master is an authority appointed to enforce the Judge’s previous ruling. The agency, in the court’s eyes, had failed to uphold promises from the previous case. Not only were many reports late,[xxiii] but they devised a complex “parent” and “child” reporting process that, in effect, lengthened the amount of time for repairs. Judge Pauley also notes anecdotal evidence from plaintiffs in the class who report negligence much like Blanche Moore did. He is harsh and direct, stating that NYCHAs actions “jeopardize the health and welfare of hundreds of thousands of New Yorkers.”[xxiv] 

Implications of the Case

Only four months have passed since Judge Pauley appointed the special master to enforce better repair pracices. While the pressure on and surveillance of NYCHA will now be heightened, there is no way of telling whether their policies will change. There are many instances in which the legal system is completely ineffective in remediating EJ claims — government agencies and corporations often have the power to out-litigate citizens. Here, however, this community was able to organize, to see their injustice in a larger context, and the current setup of the legal system was able to help them. But at what cost?

The way that the case talks about disability is worth examining. The statutory frameworks in place speaks of disability as something that inherently exists within certain people — it is a constant that an agency must work around in policy and practice. The legal documents mention the ways in which mold and moisture worsen the pre-existing disability of asthma, but do not state or even allude to how NYCHA itself is actively disabling these people. There is a difference between physical impairment and socially constructed barriers — “disability.” The former is an ailment, while the second is the social burden placed upon groups with those ailments. While this legal framework does much for current and future residents’ living conditions, it does little to reframe the politics of disability. It does little to help these residents reclaim their disabled identity as something that shouldn’t be stigmatized. The lawsuit also serves to continue the narrative of individual experience, by assuming that asthmatic residents have somehow always been that way on their own. It ignores the structural causes of disability.

Perhaps that is not the job of a case like this. Perhaps all that can and should be done is to alleviate the health burdens of these plaintiffs and hold an agency accountable for that burden. A more complex theoretical analysis is necessary for critiquing this case as a model of justice, but that analysis is a privilege not available to those who are simply struggling to breathe in their homes. Even with this lawsuit settled, residents of NYCHA housing are still reliant on that agency to fix their homes. While they were able to reclaim some power within the legal system, the general organization of the agency controlling their welfare remains intact. Progress in cases like this is always slow, but may we not forget to keep pushing the limits of how our legal system and government agencies operate.


Document Endnotes

[i] South Bronx Churches. www.sbc-iaf.org, copyright 2012. Manhattan Together, www.mt-iaf.org, copyright 2015.

[ii] Ibid. p. 22

[iii] Ibid.

[iv] Baez v NYCHA p. 1

[v] Baez v NYCHA, p. 8, 10, 12, 13

[vi] Ibid. p. 12

[vii] Ibid, p. 18

[viii] Baez v NYCHA p. 8

[ix] Ibid. p. 18

[x] Ibid. p. 12,13

[xi] Ibid, p. 13,14

[xii] Baez et. al v New York City Housing Authority 13 cv 08916 WHP, case document 2-2 filed 12/18/13

[xiii] Baez et. al v New York City Housing Authority 13 cv 08916 WHP, “Stipulation and Order of Settlement” p.3

[xiv] Ibid. p. 5

[xv] Ibid. p. 7

[xvi] Ken Thorbourne. “Groups Prod NYCHA to Keep Promises on Mold,” CityLimits.org. July 15, 2014.

[xvii] Allegra Abramo, Gwyne Hogan, Greg B. Smith. “Mold still a growing problem for hundreds of NYCHA tenants a year after promise of fixes,” New York Daily News. December 14, 2014

[xviii] Greg B. Smith. “1 in 3 city Housing Authority tenants say mold returns after NYCHA claims it’s fixed,” New York Daily News. December 21, 2014.

[xix] Greg B. Smith. “NYCHA not obeying order to fix mold in hundreds of units, tenants’ lawyers say,” New York Daily News. March 14, 2015.

[xx] Greg B. Smith, “Tenants want judge to force NYCHA to clean up mold at public housing,” New York Daily News. April 23, 2015.

[xxi]Ken Thorbourne. “Groups Prod NYCHA …”

[xxii] Adam Klasfeld “Bad Day for NYC Public Housing Agency,” Courthouse News, December 15, 2015

[xxiii] Ibid.

[xxiv] Baez et. al v New York City Housing Authority 13 cv 08916 WHP, Decided 15 Dec 2015