Full opinion text
ORDER ON MOTION FOR SUMMARY JUDGMENT McKINNEY, District Judge. This matter comes before the Court on a motion filed on January 16, 1998, by defendants, the City of Terre Haute, Joe Newport, individually and as Chief of Police, and James Jenkins, individually and as Mayor of the City of Terre Haute. After several extensions of time for the plaintiff, Shelva Warner, to respond, the motion became ripe for resolution on July 22, 1998. The defendants seek judgment in their favor on all claims raised by the complaint. Count I includes claims that the defendants deprived the plaintiff of civil rights protected by the Constitution and federal laws, all in violation of 42 U.S.C. §§ 1981 and 1983. Count II alleges a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, based on alleged discrimination because of plaintiffs sex and harassment that created a hostile environment. For the reasons further explained below, the Court finds the defendants’ motion for summary judgment well-taken. The plaintiff has not presented sufficient evidence to create a genuine issue of any fact that is material to her claims. Consequently, the motion for summary judgment should be, and hereby is, GRANTED. I. FACTUAL BACKGROUND Plaintiff, Shelva Warner (“Warner”), has been employed as a police matron by the City of Terre Haute (“the City”) since November 15, 1979. Warner Aff. 112, Ex. A. She continues in that position despite the alleged adverse actions taken against her by the defendants. Id. The City is a unit of government organized under the laws of the State of Indiana, with a population that places it in the category of a second-class city. See Ind.Code § 36-4-1-1. Defendant Jim Jenkins (“Jenkins”) became the mayor of the City on January 1, 1996, after defeating the previous mayor in the primary election, and he continues in that position to the present. Jenkins Aff. ¶2. Co:defendant Joé Newport (“Newport”) was sworn in as chief of police for the City in January 1996, and he continues in that position to this date. Newport Aff. ¶¶ 1,2. One of Newport’s two assistant chiefs, Mar-tin Dooley (“Dooley”), is in charge of the division in which Warner is employed. Dooley Dep. at 12. When Warner was appointed by the Board of Public Works and Safety in 1979, it was as a member of the City’s police department in the capacity of matron. As such, she was required to wear a uniform, carry a firearm and hand cuffs, obtain permission for off-duty work, and meet mandatory annual training requirements. Id. ¶¶4, 5. Warner has concluded from these indices that she is a member of the police department, despite the fact that state law specifically states that police matrons are not members of city police departments. ■ Ind.Code § 36-8-3-19. For purposes of this motion the Court will assume that Warner is a member of the City’s police department and will consider the City’s actions in that light. By 1996, Warner had worked for approximately fifteen years at the information desk at City Hall in Terre Haute. Her job required daily public contact in person and on the telephone, she answered questions, gave directions, provided information, escorted female prisoners to and from city court, and oversaw activities in city court. Id. ¶ 10. Ordinarily, Warner was assisted by another officer because her varied duties would sometimes take her away from the desk. Id.; Barnett Dep. at 12-14. In early 1996, shortly after a change in administration, Warner was transferred from her position at the information desk to a clerical position in the police department records room. Warner Dep. at 17; Dooley Dep. at 22. Next, her work schedule changed from daytime hours to evening hours, and she was temporarily deprived of a lunch or dinner break. Warner Dep. at 17-19, 22; Dooley Dep. at 23. At about this same time the Indiana Legislature voted to allow police matrons to be included in police pension funds, rather than in the Public Employee Retirement Fund (“PERF”) for civilian employees. Ind.Code § 36-8-8-1(3). Warner had requested that her pension be transferred from PERF to the police pension fund prior to the effective date of the new law. Hutton Dep., Ex. 4, Undáted Letter; Warner Aff. ¶ 26. Although no formal action was taken on that request for approximately eighteen months, a letter from the City’s attorney, William Drummy (“Drummy”), dated April 23, 1996, indicated the City was considering the request. Defs Ex. 13, Letter dated April 23, 1996. In the letter, Drummy requested guidance from Thomas Parker, the Director of the 1977 Police Officers’ and Firefighters’ Pension and Disability Fund (“1977 Pension Fund”) at PERF. Defs Ex. 13, Letter dated April 23, 1996; Ex. 12, Memo dated October 9, 1997. Specifically he asked Parker about the eligibility of, and proper enrollment procedures for, the two matrons in connection with the 1977 Pension Fund. Id. By December of 1997, the City Council had sufficient information to vote on including matrons in the police pension fund, and a resolution was passed that month to effect the change. Plf s Ex. G, Hutton Dep., Ex. 2, Letter dated December 30, 1997. Warner concedes that she is now a member of the 1977 Pension Fund and makes her retirement contributions to that fund. Warner Dep. at 48. Warner attributes the defendants’ treatment of her — the changes in her position and work schedule, the delay in transferring her pension — to the fact that she had opposed the current mayor’s election. During the 1995 mayoral primary election Warner supported the incumbent mayor, Pete Chalos (“Chalos”), in his contest against defendant Jenkins. Id. ¶ 7. She also served as a precinct committee person who worked to support Chalos and defeat Jenkins. Id. Chalos lost the primary election to Jenkins, who subsequently ran unopposed in the November general election and was elected mayor. Id. ¶¶ 7-8. In late 1995, Jenkins announced that he would appoint Dale Loudermilk, the son of former police chief Gerald Loudermilk, as assistant police chief. Loudermilk Aff. ¶ 4; Warner Aff. ¶ 9. The Loudermilk family had been active supporters of Jenkins’ mayoral election. Warner Aff. ¶ 8. Warner alleges she began hearing rumors shortly after Cha-los’ unsuccessful primary campaign that Jenkins and others planned to retaliate against her once they came to office for her support of Chalos. Id. 18. When Jenkins assumed the office of mayor in January 1996, he appointed defendant Joe Newport as chief of the police department. Prior to that time Newport had been an officer with supervisory duties during the Chalos administration, and Warner had always gotten along well with him. Newport Aff. ¶ 3; Warner Dep. at 20. After hearing from several sources she considered credible that Jenkins intended to fire her, Warner arranged an appointment with the newly-elected mayor'to inquire about her position. Warner Dep. at 53. She told him about the rumors she had been hearing and he said that “he was going to be way too busy being mayor to worry about matrons.” Warner Dep. at 53. Jenkins told her he also had heard rumors about various people he would be firing when he came to office, and he was not going to fire anybody. Id. No evidence has been presented that Jenkins fired anyone. After Jenkins and Newport took office, Newport transferred Warner to the records room, where she had never worked before, to perform clerical work. Warner Dep. at 18; Dooley Dep. at 22, 27. It is not disputed that the police department had a labor shortage at the time. Warner Dep. at 74. Nor is there any dispute that the records department was behind in its work. However, Newport did not give Warner a specific explanation for why she was being transferred. Id. at 19. She began working in records in January, and by March of 1996 Warner’s hours were changed from days, 6:30 a.m. to 2:30 p.m., to evenings, 12:00 noon to 8:00 p.m. Id. at 20. Warner had worked a daytime shift since the beginning of her employment in 1979. Id. at 21. She was not given a reason for the 1996 change in her work schedule. Id. at 22. Moreover, she was told she would not get a dinner hour during the noon to 8:00 p.m. shift, because her superiors did not want the records room closed. Id. at 22-23. The next day after Warner was assigned the noon to 8:00 p.m. shift with no dinner break, she was changed to a 1:00 to 9:00 p.m. shift that included a dinner break. Id. Warner worked this shift in the records room until approximately July 2, 1996, when she was returned to the information desk and a daytime schedule, but with no extra officer to assist her. Id. at 25. For some reason Warner worked without a lunch break for eighteen days, during which time she complained to “anybody that would listen,” and then she contacted her attorney who sent a letter to the department about the situation. Id. at 26, 28; Warner Aff. ¶ 24. Although it is not clear from the record what caused the change, after her attorney’s letter was sent Warner got a lunch break of forty minutes. Warner Dep. at 28. The only other conversation Warner ever had with Jenkins occurred at about this time, in late July or August of 1996. Id. at 53. He told her she was doing a “great job” and asked her if her lunch hours had been straightened, out. Id. at 53, 91. When she told him they had not, he said that he would talk to Chief Newport about it. Id. at 54. It was after this conversation that Warner and all of the dispatchers were told to take a forty-minute lunch break each day and twenty-minutes of additional breaks through the day. Id. Warner’s break was often at 9:30 or 10:00 a.m., which was a difficult time for her to find any lunch-type food nearby. Id Warner believed the changes in her work assignments and schedule, the pension fund difficulties, and the restriction on her lunch break constituted discriminatory treatment because she had supported Chalos. According to Warner, the secretaries and police officers were not limited to just one hour of breaks each day. Warner Dep. at 54-55. She also complained that she did not really get an hour in daily breaks. Id. Even though Warner had been told she could take additional breaks in the morning and afternoon, she often got called back to the desk when it was busy. Warner Dep. at 92. Warner’s work schedule changed again in July of 1997, when a police substation opened, and she began working an 8:00 a.m. to 4:00 p.m. shift. Id. at 28-29. She continued to be limited to a forty minute lunch break, but it occurred later than 9:30 or 10:00 a.m. Id. During the time that Warner was working in the records room, Lieutenant David Barnett (“Barnett”) received his new assignment to the position of day shift commander. Barnett Dep. at 9-10. He had previously been the night duty commander. Id. at 16. As day shift commander, Barnett was in charge of all the squad cars working during that shift, the 911 operators and radio dispatchers for both the police and fire department, and the information desk, but not the records room. Id. at 22-26. Consequently, when Warner returned to the information desk position in July 1996, Barnett became her new supervisor. Id. Even though Barnett had no involvement in Warner’s transfer to the records room, he understood it to have been because of a serious backlog in record-keeping, and the need for additional help to catch it up. Barnett Dep. at 15-16. It is not clear that this explanation was ever given to Warner. . As shift commander, Barnett sat at a desk in the basement of City Hall, just outside of the radio dispatch area. Barnett Dep. at 10, 23-24. The information desk is located in the main lobby on the first floor of City Hall, so that members of the public encounter it when they first arrive. Warner Aff. ¶ 10. Consequently, Barnett had no visual contact with anyone posted at the information desk. This increased the difficulty with supervising that position. When dispatchers left their stations to go to lunch or the bathroom Barnett could usually see them leave, although they also came into his office and reported their activities to him. Barnett Dep. at 23-24. Sometimes he could not let them leave for a lunch break when they wanted to, because there' would be no one to relieve them; if the radio room was understaffed the dispatchers could not go to lunch. Id. at 24. The same was true with the information desk. Barnett testified that he tried to allow his employees 'to go out every day, but sometimes it could not be done. Id. If it was too busy, they had to stay at their posts and work through lunch. DeHart Dep. at 24. According to Barnett, “[ajfter Matron Warner gets relief for lunch, if I have a police [officer] I bring them from the field and try to relieve that radio operator.” Barnett Dep. at 24. Barnett’s job was no less demanding. On occasions when he would have to leave his desk, even to go to the bathroom, he carried a portable radio with him so he could be reached. Id. at 26. To take a lunch break, Barnett would have to locate a field sergeant to come in and relieve him, but while he was out he was on call as a “working field sergeant.” Id. at 27. This meant that if a call for assistance came in, Barnett would have to leave his lunch and go supervise the officers taking the call. Id. In contrast, after the eighteen days without a lunch break, Warner consistently was able to take a lunch break. Warner Dep. at 28-29. Warner also claims that two other events occurred that show the discriminatory or retaliatory animus against her. First, she was denied the opportunity in September of 1996 to accompany an officer on an out-of-town trip to pick up a female prisoner, which meant the loss of some overtime hours. Warner Dep. at 82. She was told that the officer requested that she not go with him because she would smoke in the car. Id. at 83. Warner had accompanied this officer before for a prisoner pick-up and she did smoke in the car. Id. However, the officer took a civilian dispatcher with him, Barbara DeHart, who also was a smoker. Id.; De-Hart Dep. at 28. DeHart testified that she smoked in the car on the way to pick up the prisoner, although she would have honored a request that she not smoke, but she did not smoke on the way back. DeHart Dep. at 46-47. Warner asserts that she, too, would have honored a no-smoking request. Warner Dep. at 83. The second event was that Barnett began keeping a log of Warner’s activities, in which he recorded the times she was away from the information desk and the purpose for her leaving. Warner Dep. at 32-33. To facilitate this record-keeping, Warner had to call the commander whenever she left her station, even if it was to go to the bathroom. Id. at 30-31. She felt it was humiliating to have to call a man and ask permission to go to the bathroom. Id. The log was kept on a yellow pad of paper and it consisted of approximately three pages. Id. at 33, 35. Keeping the log was precipitated by an incident during which Warner had gone to a captain’s office to retrieve some papers and she had told Barnett where she was going. Id. at 38-40. Although Barnett nodded to her, he had apparently not absorbed the information. Id. While she was gone, a superior officer, Captain Brentlinger, who was looking for her asked Barnett where she was, and became upset when Barnett could not say. Id. at 39. According to Warner, Captain Brentlinger thought she should get a suspension for being absent from her station. Id. at 38. Barnett did not suspend her because he had considered it his fault for not remembering where she said she was going. Id.; Barnett Dep. at 20. According to Barnett, After a month of people calling me and asking where is the information desk officer, I didn’t know, I’d forgot.... I had problems keeping track of where Mrs. Warner was at after she had called me a minute before. Captain Brentlinger, my immediate supervisor would be asking me, and he was telling me this was a problem why I didn’t know where Mrs. Warner was at .... so I took the initiative — and also I think initially I wanted a log kept so I knew exactly where she was at. If someone called I knew where she was____so I wouldn’t feel like I was on the spot and I couldn’t tell. Barnett Dep. at 18-19. When Barnett informed Warner that he had to keep track of her whereabouts and about keeping the log, she became upset and cried. Warner Dep. at 39; Barnett Dep. at 43-45. Once he decided to keep the log for this reason, Barnett discovered it was also useful in determining ways to improve the coverage on the information desk by examining the types of tasks that took Warner away from the desk. Barnett Dep. at 19-20. He learned that one of those tasks was when she had to do a title check for someone, which entailed her going outside to see the vehicle. Barnett Dep. at 19. Barnett took that job away from her. Id. “That kept her in the office,” Barnett testified. “Then the phones would be answered, and the people coming in would be met by an officer, a matron, Mrs. Warner, and that improved my job situation a lot.” Id. at 20. Barnett got the idea for creating “Warner’s Log” from the procedures used with squad officers who must call in whenever they leave their cars so the information could be entered in a computer log of the officer’s activities. Barnett Dep. at 20-21. According to Barnett, “Ee]very sergeant [or] officer that goes out on a call, when they ... get out of that car they call in, and we put it in the computer ... that they’re taking a break.” Id. at 21. Before he started supervising Warner during the day shift on the information desk, Barnett had no idea of how busy it was. Id. Keeping the log helped him identify ways to improve the job. Id. Nevertheless, Barnett only kept it for a period of about two weeks, from September 11 to September 19, 1996. Barnett Dep. at 38-39, 46; Defs Ex. 11, Warner’s Log. He stopped keeping the log because, after a couple of weeks, he had a better understanding of the information desk job during the day shift. Barnett Dep. at 46. Barnett was satisfied that he had some idea of the reasons why Warner would have to leave the desk'and approximately how long it would take for her to return. Id. This understanding assisted him when handling calls from his superiors asking him were Warner was, and it allowed him to make some adjustments in her job duties that he felt were improvements. Id. at 46-47. However, Warner did not perceive these events as improvements, for she felt she was no longer free to walk away from her desk whenever she needed to as she had in the past. Id. at 41. In sum, Warner claims that her transfer to the records room, the change to a night shift, losing her lunch breaks, her pension difficulties, the loss of overtime pay for traveling to get prisoners, and the log that was kept of her activities were all events that altered her working conditions. These alterations occurred after she had engaged in protected political activity, and she argues that the alterations were in retaliation for that protected activity. The defendants have offered a non-discriminatory reason to explain each event that occurred, but they also claim that there can be no municipal liability and that the individual actors are qualifiedly immune from liability. After briefly setting forth the standards to follow, the Court will address these issues. II. STANDARDS Summary judgment is granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id. The moving party has the initial burden to show the absence of genuine issues of material fact. See Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir.1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n. 3 (7th Cir.1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Scherer v. Rockwell Int’l Corp., 975 F.2d 356, 360 (7th Cir.1992). The opposing party must “go beyond the pleadings” and set forth specific facts to show that a genuine issue exists. See Hong v. Children’s Mem. Hosp., 993 F.2d 1257, 1261 (7th Cir.1993), cert. denied, 511 U.S. 1005, 114 S.Ct. 1372, 128 L.Ed.2d 48 (1994). This burden cannot be met with conclusory statements or speculation, see Weihaupt v. American Med. Ass’n, 874 F.2d 419, 428 (7th Cir.1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Brasic v. Heinemann’s Inc., Bakeries, 121 F.3d 281, 286 (7th Cir.1997); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir.1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a summary judgment motion, a court must draw all reasonable inferences “in the light most favorable” to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir.1992). If a reasonable factfinder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir.1992). When the standard embraced in Rule 56(c) is met, summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Shields Enters., 975 F.2d at 1294. III. DISCUSSION Warner has brought this action against the City of Terre Haute, its mayor and police chief under three different federal statutes. First, she invokes 42 U.S.C. § 1983, which provides a remedy for violations of the civil rights that are protected by the United States Constitution or other federal laws. Section 1983 states, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ____ Under this law, Warner seeks to enforce her rights of expression and of association under the First Amendment of the Constitution. Sub-part A of this section will address these issues. Next, Warner claims that the defendants’ conduct violated the “Civil Rights Act of 1991,” 42 U.S.C. § 1981, which guarantees all persons “the same right ... to make and enforce contracts ... and to the full and equal benefit of all laws and proceedings ... as is enjoyed by white citizens ____” 42 U.S.C. § 1981(a). The 1991 amendments to this act clarifies that the right to “make and enforce contracts” includes the performance of contracts, and the “enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Courts have construed this provision to apply to contractual employment relationships. See Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1034 (7th Cir. 1998). To properly invoke this statute, however, the complaining party must demonstrate membership in the protected class of ethnic minority citizens, as well as existence of a contractual relationship. Id.; Rush v. McDonald’s Corp., 966 F.2d 1104, 1119 (7th Cir.1992). As the defendants have correctly pointed out, Warner has not alleged or presented any evidence that she was denied any employment benefit, opportunity, or privilege because of her status as a member of an ethnic minority. In fact, the evidence is that she is a white female, Jenkins Aff. ¶ 4, with no particular ethnic characteristic or ancestry that would make a claim by her actionable under § 1981. See St. Francis College v. Al-Khazraji, 481 U.S. 604, 612, 107 S.Ct. 2022, 95 L.Ed.2d 582, reh. denied, 483 U.S. 1011, 107 S.Ct. 3244, 97 L.Ed.2d 749 (1987); Bisciglia v. Kenosha Unif. Sch. Dist., 45 F.3d 223, 229 (7th Cir.1995). Consequently, her claim in Count I charging a violation of § 1981 should be dismissed, and summary judgment in favor of the defendants should be, and hereby is, GRANTED. Finally, Warner has asserted a claim under Title VII for alleged employment discrimination because of her sex. Under that statute, [i]t is an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex ... or (2) to limit, segregate, or classify ... employees ... in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuars ... sex____ 42 U.S.C. § 2000e-2(a). For her claim of sex discrimination, Warner states that the defendants “rendered her workplace a hostile environment as that term has been defined by law.” Compl. ¶ 20. It appears she is asserting the sexual-harassment type of sex discrimination claim, which will be considered in Sub-part B of this section in accordance with the analytical framework established for hostile environment sexual harassment claims. Warner also claims that the City denied her certain pension' benefits to which she was entitled as of July 1996, and that she was forced to file this suit in order to obtain those benefits. She does not specify the statutory basis for this claim, other than in her discussions about alléged § 1983 violations. However, in December of 1997 the City passed a resolution to include Warner and the other police matron in the 1977 Pension Fund. The defendants argue that this action renders Warner’s claim with respect to her pension moot. According to Warner, however, the City’s eventual compliance with her request to be included in the 1977 Pension Fund occurred only because she filed suit, which makes her a prevailing party under §§ 1983 and 1988. The Court will address this issue separately in Sub-part C. A. § 1983 FIRST AMENDMENT CLAIM In order to succeed on a claim under § 1983 a plaintiff must prove two distinct elements: (1) conduct by a person acting under color of state law; (2) which deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States, proximately causing injury. Brown v. City of Lake Geneva, 919 F.2d 1299, 1301 (7th Cir.1990); Bayview-Lofberg’s, Inc. v. City of Milwaukee, 905 F.2d 142, 144 (7th Cir.1990). Warner’s theory on the first element is that her re-assignment, surveillance, and other alleged instances of disparate treatment, occurred at the hands of employees of the Terre Haute Police Department during performance of their duties. See Gibson v. City of Chicago, 910 F.2d 1510, 1516 (7th Cir.1990). There is no dispute about this element. With regard to the second element, the defendants claim that Warner did not allege conduct that would be protected under the First Amendment, arguing that her political activity constituted speech on a matter of private concern. The Court does not agree. Warner has alleged a colorable claim, because the freedom to associate -with others for the advancement of common political be--liefs and ideas is a form of orderly group activity protected by the Constitution. See Elrod v. Burns, 427 U.S. 347, 357, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); see also Rutan v. Republican Party of Ill., 497 U.S. 62, 70, 110 S.Ct. 2729, 111 L.Ed.2d 52, reh. denied, 497 U.S. 1050, 111 S.Ct. 13, 111 L.Ed.2d 828 (1990). Likewise, the expression of those political beliefs and ideas is not a matter of private concern, but is constitutionally protected. In her complaint, Warner alleges that Gerald Loudermilk was a confidante of Jenkins, that he was the former police chief under Chalos, but was demoted by Chalos, and that he asked Jenkins to make her working conditions unbearable so she would resign. Compl. ¶ 6. She also alleges that the defendants’ conduct toward her constitutes retaliation against her because she testified in litigation against the City. That action was Hiatt, et al. v. Chalos and Watts, and it was brought by several police officers against then mayor Chalos and chief of police Watts. Compl. ¶ 15. Neither party has attempted to characterize Warner’s claim of retaliation for having testified against the City, but the Court finds that such conduct could be actionable under § 1983 as a possible violation of Warner’s free speech rights. The defendants merely deny that it happened, and Warner has developed no facts and offered no argument in support of any claims about retaliation for giving testimony. Consequently, the Court finds that this claim has been waived. Nevertheless, if Warner can produce sufficient evidence to allow a reasonable fact-finder to agree with her theory of liability regarding political retaliation, she will succeed in opposing summary judgment on the § 1983 claim. Complicating her task is the fact that holding municipalities and municipal officers liable for constitutional violations requires certain specific types of evidence, without which no liability will attach. This is because the “person” whose conduct supposedly incurred liability is the municipality itself, and it cannot be held liable on a respondeat superior basis. Warner has sued the City of Terre Haute, and Jenkins and Newton in both their individual and official capacities. Her claim is therefore vulnerable to the defense that no municipal liability may attach, as well as to a qualified immunity defense. Both of these issues must be addressed before considering whether sufficient evidence was offered to show that any alleged conduct by the defendants caused a constitutional deprivation. 1. MUNICIPAL LIABILITY When a plaintiff sues a municipality under § 1983 for acts of its employees, she must demonstrate how the municipality may be held liable. To succeed on her claim, the plaintiff must show that enforcement of a municipal policy, or some other deliberate municipal action, caused the alleged constitutional deprivation and its consequential damages. Collins v. City of Harker Heights, Texas, 503 U.S. 115, 122-23, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992); City of Canton v. Harris, 489 U.S. 378, 385-86, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Municipalities are answerable only for their own decisions and are not vicariously liable for the constitutional torts of their agents. See Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir.1992). Instead, it is only when the execution of a government’s policy or custom inflicts the injury that the government as an entity may be held responsible under § 1983. Id. at 694, 98 S.Ct. 2018; see also Hirsch v. Burke, 40 F.3d 900, 904 (7th Cir.1994). A plaintiff has three alternative means of showing municipal liability for a deprivation of her rights. First, the plaintiff may prove the existence of an express municipal policy the enforcement of which is inherently unconstitutional, or as a plurality of the Supreme Court has stated, would be invalid “by its terms.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 822, 105 S.Ct. 2427, 85 L.Ed.2d 791, reh. denied, 473 U.S. 925, 106 S.Ct. 16, 87 L.Ed.2d 695 (1985) (citing as an example the policy in Monell, 436 U.S. at 658, 98 S.Ct. 2018, which compelled pregnant employees to take mandatory leaves of absence before such leaves were medically necessary). If the policy is inherently unconstitutional, the plaintiff need only show that it was enforced or applied one time — i.e., in the plaintiffs own case — for the municipality to become liable. Id. Second, the plaintiff may show that an injury resulted from enforcement of an unexpressed municipal policy — such as inadequate implementation, supervision, or training— which exists due to the “deliberate indifference” of municipal officials. See Harris, 489 U.S. at 385-86, 109 S.Ct. 1197; Graham v. Sauk Prairie Police Comm’n, 915 F.2d 1085, 1100 (7th Cir.1990). Deliberate indifference is present when an inadequacy “is so obvious, and ... so likely to result in the violation of constitutional rights, that the policymakers for the [municipality] can reasonably be said to have been deliberately indifferent ____” Graham, 915 F.2d at 1101 (quoting Harris, 109 S.Ct. at 1205); Hirsch, 40 F.3d at 905 (simple negligence will not suffice to attach § 1983 liability). The plaintiff cannot demonstrate existence of an unexpressed municipal policy, however, by relying on one isolated instance in which constitutional rights were violated. Instead, the plaintiff must show “multiple incidents of unconstitutional conduct,” Gibson v. Chicago, 910 F.2d 1510, 1522-23 n. 20 (7th Cir.1990), or a “widespread practice that... is so permanent and well-settled as to constitute a custom or usage with the force of law.” Baxter by Baxter v. Vigo Cty. Sch. Corp., 26 F.3d 728, 735 (7th Cir.1994) (quotations omitted). Mere boilerplate claims that a policy exists will not be sufficient, Baxter, 26 F.3d at 736; instead, the plaintiff must demonstrate a pattern of unconstitutional conduct resulting from the unexpressed policy. Id.; Graham, 915 F.2d at 1100; Gibson, 910 F.2d at 1522, n. 20. Third, when the actions alleged to have violated a plaintiffs constitutional rights are taken directly by a person with final policy-making authority, or by the municipality itself, then the plaintiff need not establish the existence of a separate municipal policy or custom. See Glatt v. Chicago Park Dist., 87 F.3d 190, 193-94 (7th Cir.1996) (noting that an allegation of a municipal policy or custom is not necessary when the defendant committed the unlawful act directly, rather than through employees below the policymaking level). For example, if a mayor has final policy-making authority and directed that an employee be treated in a way that violates his or her constitutional rights, the municipality’s liability would be direct. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (an unconstitutional governmental policy could be inferred from a single decision taken by highest official responsible for setting policy in that area of government’s business); DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 190 (7th Cir.1995) (municipal liability will not result from official’s conduct unless official is a final decision-maker). Plaintiffs may not, however, simply assume that a given official can set policy for the municipality, without demonstrating the legal basis for such authority. Here, Warner has sued the City of Terre Haute, its mayor and its chief of police in both their official and individual capacities. She claims that she was harassed by superior officers in the Terre Haute Police Department as part of a campaign to retaliate against her for supporting the incumbent mayor during his primary election contest with Jenkins, who became the new mayor. However, a suit against a municipal officer in his or her official capacity is construed as a suit against the municipal entity. DeGuiseppe, 68 F.3d at 189-90; Yeksigian v. Nappi, 900 F.2d 101, 103 (7th Cir.1990) (citing Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). Because Warner has already sued the City, her suit against its mayor and police chief in their official capacities is redundant. For this reason, the Court will analyze the City’s liability using municipal liability principles, and that of the two men using individual liability principles. With respect to the former, Warner has not alleged, or provided evidence about, any express municipal policy that deprived her of her constitutional rights. In fact, she has made allegations that specifically contradict any finding of an express municipal policy behind the conduct about which she complains. Here, as in Auriemma, an express policy prohibited the acts of which the mayor and police chief are accused. “Liability for unauthorized acts is personal; to hold the municipality liable, Monell tells us, the agent’s action must implement rather than frustrate the government’s policy.” Auriemma, 957 F.2d at 400. This means that the only way -to impose liability on the City for the mayor’s or police chiefs actions would be to find a custom or practice of acquiescence by the municipal policy-maker in such rule-breaking, or to find that one or both of these men were policy-makers for purposes of the events in question. See Jett, 491 U.S. at 737, 109 S.Ct. 2702 (court must identify official who speaks with final policy-making authority concerning the action alleged to have caused the particular constitutional deprivation). Thus, for Warner to survive summary judgment on the issue of municipal liability, she must proffer sufficient evidence from which a reasonable fact-finder could discern either an unexpressed municipal policy, practice, or custom of acquiescence, or conduct by a person who has final policymak-ing authority with respect to actions taken against her. The Court finds no evidence that would support Warner’s allegations of an unexpressed policy. She has made only concluso-ry references to an unexpressed policy of retaliatory harassment for political activity. No proof has been offered that any retaliatory or harassing conduct was directed at any other city employee, which makes Warner’s situation an isolated one. Municipal liability cannot attach for an unexpressed policy, or widespread practice, of acquiescence in unauthorized acts based on only one isolated instance of such conduct. See Baxter, 26 F.3d at 735. Warner’s evidence falls far short of raising a factual issue regarding whether there was a wide-spread pattern or practice of allowing the mayor and police chief to harass employees for their political beliefs or activities. Thus, Warner cannot use this method of imposing liability on the City. The only remaining method for imposing liability on the City under § 1983 is if Warner can show that the alleged harassing conduct was directed by a person with final policy-making authority with respect to the conduct in question. The locus of a municipality’s policy-making authority is determined with reference to state and local law. Eversole v. Steele, 59 F.3d 710, 715 (7th Cir.1995); Auriemma, 957 F.2d at 400. However, the determination must be made with respect to the type of policy at issue. Id. For example, if the alleged policy is to retaliate against employees who are political opponents of the mayor’s by harassing them on the job, then the relevant policymaker would be the person who sets workplace rules. See Eversole, 59 F.3d at 716; Auriemma, 957 F.2d at 400. Terre Haute is a second-class city under the laws of the State of Indiana, and as such it has both a legislative body, the city council, and an executive, the mayor. See Ind.Code § 36-4-4-1 to 36-4-4-4, § 36-4-5-1 to 5-4. In general, municipal policy for a city of this type is set by the legislative body. See Auriemma, 957 F.2d at 400; Ind.Code §§ 36-1-3-6, 36-1-3.5-1, 36-1-4-1 et seq., 36-1-5-3. That authority may be delegated by the legislative body to a member or agency of the executive branch. City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Ordinarily, a city’s board of public safety, which is established by the legislature, “shall administer the police and fire departments of the city” and have “exclusive control over all matters and property relating to the [those departments].” Ind.Code § 36-8-3-2(a), (b); see also Ind.Code § 36-4-9-4. The safety board is empowered by state law to “adopt rules for the government and discipline of the police and fire departments; and adopt general and special orders to the police and fire departments through the chiefs of the departments.” Ind.Code § 36-8-3-2(c). The only exception to the safety board’s authority to administer the police department occurs when there is a merit system established by statute or ordinance. Ind.Code §§ 36-8-3-2(a), 36-8-3-5. In that instance, the merit board or commission has exclusive authority over the appointment, discipline, demotion, promotion, and suspension of police officers, unless its establishing law specifically incorporates the Indiana Code sections providing such authority to the safety board. Ind.Code § 36-8-3-5. Here, the City’s legislative body, with approval of a majority of the members of the police department, has adopted a merit system for the City’s police department. Dooley Dep. at 9, 21. Such a system requires the establishment of a merit commission that creates rules for, administers and governs the police department. Ind.Code §§ 36-8-3.5-3, 3.5-6, 3.5-10, 3.5-11, 3.5-17. The merit commission may appoint and remove members of the department except for members in “upper level policymaking positions,” which includes the chief and members in the next three ranks and pay grades immediately below the chief. Ind.Code §§ 36-8-3.5-11, 36-8-1-12. The upper level policymaking positions are appointed by the executive for the city, which in this case is the mayor, Jenkins. Id. Likewise, the mayor appoints two members to the five-member merit commission, while the legislative body appoints one member and the police department elects two members. Ind.Code § 36-8-3.5-6. The merit commission is authorized to take certain disciplinary actions against regular members of the department, after holding n hearing if requested by the member. Ind. Code § 36-8-3.5-17. If a member is suspended for more than ten days, the member may appeal the commission’s decision to the circuit or superior court of the county. Ind. Code § 36-8-3.5-18. The chief of police may take certain summary disciplinary actions on his own, including a written reprimand and up to a five-day suspension, without a hearing, if he notifies the commission in writing within forty-eight hours of such action and the reason for it. Ind.Code § 36-8-3.5-19. The member being disciplined may ask the commission to review the action and either uphold or reverse the chiefs decision. Id. With this structure for governing the police department, it appears that the City has vested its chief of police, in this Case Newport, with exclusive control of the police department, subject to review by the merit commission. Ind.Code § 36-8-3.5-11, 3.5-18. The Seventh Circuit has held that a police chief in Indiana is the final policymaker for the municipal police department. See Ever-sole, 59 F.3d at 716. However, the policymaker determination in Eversole was made with respect to the rules and regulations governing arrests. Id. at 714. Here, the question is who had final policymaking authority with respect to workplace rules and duty assignments for members of the police force. That inquiry requires examination of the relationship between the merit commission and the police department concerning personnel management. It is not answered in the statutes. Instead, the Court must turn to other documentation of that relationship. Aecording to the Manual of Rules of the Terre Haute Police Department (the “Manual”), the policies, procedures and rules it contains are established by the chief of police and the merit commission. Dooley Dep., Ex. 6, Manual of Rules at 16. The Manual sets out the general responsibilities of all police personnel, which includes obeying and carrying out “all lawful policies, orders and procedures issued by the Chief of Police and superior officers, whether the orders are written or oral.” Id. at 19. Further, it states that the “Chief of Police is responsible for the day to day functions of the Department and the assignment of members to duties within the Department.” Id. at 27. If a member of the department believes an order to be unjust or unreasonable, he or she must “immediately advise the superior officer issuing the order of [his or her] objection to it.” Id. at 58. However, if given the order a second time, the member is to follow the order and then appeal it through the chain of command up to the chief. Id. There is no provision for an employee to appeal the chiefs ruling on the order, unless the employee refuses to follow it and is disciplined as a result. In that ease, the merit commission may institute disciplinary action, or it may review and revise any such action taken by the chief or other superior officer. Id. at 50-51. The chief also has the authority to take whatever disciplinary action is necessary to insure the proper functioning of the department. Id. at 51. The Manual demonstrates that authority for setting rules, procedures and policies is shared by the merit commission and chief, but authority for day to day operations and assigning members to duties and shifts resides in the chief of police alone. In addition, the authority for administering discipline is shared between the police chief and the merit commission, because the chiefs decisions are subject to review and modification by the merit commission. Thus, Newport’s acts of re-assigning Warner to the records room, changing her shift schedule to nights, and requiring her to remain at her post at the information desk, were all taken by a final policymaker with respect to decisions of that sort. No disciplinary measures were taken that would open the chiefs decisions to scrutiny by the merit commission. Consequently, if Newport’s conduct resulted in a deprivation of Warner’s constitutional or other civil rights, the City would be liable for any harm caused her. According to Warner, once Jenkins assumed office and appointed his own police chief, the two conspired to make her working conditions intolerable, hoping she would quit. Given that the mayor appoints the police chief, who is the final policymaker for duty and shift assignments, Warner has assumed that the mayor is a policymaker as well. Yet, the legislative control over the police department was delegated to the merit commission, not the mayor. To hold the City liable for the mayor’s alleged retaliatory acts against Warner, she must “forge a link” between the action and the policy of the merit commission. See Auriemma, 957 F.2d at 400. There is no evidence to support such a link. Although the mayor has the power to appoint the chief and two members of the commission, he does not sit on or control the commission. Instead, there are three other members of the commission who are not appointed by the mayor and it is the commission that creates policy for the police department. Warner seeks to link the actions taken against her to the City by means of an alleged conspiracy between Jenkins and Newport. Assuming for the moment that such a conspiracy could impose municipal liability on the City, the Court finds no admissible evidence supporting the existence of any conspiracy. Consequently, the City cannot be held liable for the acts in question through any conduct by the mayor. It may, however, be liable for Newport’s acts if they are proven to have caused a constitutional deprivation. Before reaching that issue, the Court now turns to an examination of whether individual liability could be imposed on Newport or Jenkins. 2. INDIVIDUAL LIABILITY When a governmental agent engages in conduct that deprives a person of his or her constitutional or other federally-protected rights, the agent may be subject to individual liability for that conduct. See Venters v. City of Delphi, 123 F.3d 956, 966 (7th Cir.1997). The only additional showing needed is that the agent was acting under color of state law. Id. n. 2 (citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). When the agent is also the final policymaker and his acts directly caused the alleged constitutional harm, it follows that both the municipality and the individual actor could be held liable. See Springdale Educ. Assoc. v. Springdale Sch. Dist., 133 F.3d 649, 653 (8th Cir.1998) (a supervisor may be subject to individual liability if he directly participates in constitutional violation, regardless of whether supervisor is an authorized policymaker for purposes of municipal liability). Thus, Newport could be held individually responsible for Warner’s § 1983 claim, if she succeeds in proving it. Having determined that Newport may be subject to individual liability even if his act as a policymaker also subjects the city to municipal liability, and assuming, without finding, that Jenkins could be subject to individual liability, the Court now turns to the qualified immunity issue. Courts created the rule of qualified immunity to ensure that public officials would not be unduly pinioned in the performance of their duties by the fear of personal liability. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). It allows officials to be shielded from liability under 42 U.S.C. § 1983 if the right they are alleged to have violated was not clearly established at the time of the inci-. dent. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034. The contours of the asserted right “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640, 107 S.Ct. 3034. While it is the defendant’s responsibility to show that their conduct was not violative of any of the plaintiffs clearly established rights, Pennington v. Hobson, 719 F.Supp. 760, 765 (S.D.Ind.1989), the plaintiff bears the burden of demonstrating the existence and violation of a clearly established right. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Forman v. Richmond Police Dept., 104 F.3d 950, 957-58 (7th Cir.), cert. denied, — U.S. —, 118 S.Ct. 563, 139 L.Ed.2d 403 (1997); Hannon v. Turnage, 892 F.2d 653 (7th Cir.), cert. denied, 498 U.S. 821, 111 S.Ct. 69, 112 L.Ed.2d 43 (1990). The parties dispute whether the specific actions Warner alleges were taken against her could be considered unconstitutional. In support of their argument that no unconstitutional acts were taken, the defendants rely on several eases in which an employee’s First Amendment right to free speech was at issue, and the courts, focusing on whether the speech was on a matter of private concern, ruled against the plaintiffs. These cases do not apply because Warner engaged in political speech and activity, neither of which are matters of private concern. The defendants have also cited eases in which the discharge of an employee based on his or her political alignment was found to be constitutional because of the employee’s position of confidence or as a policy-maker — the “anti-patronage” eases. Neither of these types of cases apply here. Instead, the proper standards governing Warner’s theory are found in a line of cases beginning with Bart v. Telford, 677 F.2d 622 (7th Cir.1982), which holds that a campaign of petty harassment in response to an' employee’s expression of his political views is actionable under § 1983 as a violation of the employee’s First Amendment rights. One of the cases, Pieczynski v. Duffy, 875 F.2d 1331 (7th Cir.1989), holds that harassing a public employee for his or her political beliefs violates the First Amendment unless the harassment was so trivial that a person of ordinary firmness would not be deterred from holding or expressing those beliefs. Id. at 1333. The most recent ruling on the subject, Wallace v. Benware, 67 F.3d 655 (7th Cir.1995), considered whether the anti-retaliation rulings in Bart and Pieczyn-ski applied to an employee who could be constitutionally discharged under the policy-making exception to the anti-patronage line of cases. The court in Wallace notes that the purpose of the policy-making exception to the Constitution’s ban on patronage dismissals is to enhance the effectiveness and efficiency of a unit of government. Wallace, 67 F.3d at 661. When the employee’s position requires political loyalty courts allow a discharge in response to expressed political beliefs or associations that may pose “a threat to the efficient conduct of public office.” Id. at 662. The rationale for allowing this type of retaliation is that it is presumed that the public office-holder’s “action is directed toward the efficient and effective operation of his public office.” Id. That rationale, the court wrote, cannot be extended to a campaign of retaliatory harassment, as opposed to discharge, of such an employee for his or her political activity. Id. Despite its finding that retaliatory harassment should not be allowed, however, the court in Wallace reversed the jury’s verdict in favor of the plaintiff on grounds of qualified immunity. Wallace, 67 F.3d at 663. In that ruling, the Seventh Circuit answered the question of whether the alleged conduct in this action sets out a clearly established constitutional violation. It does. In Wallace, the sheriff had waged a campaign of petty harassment against a deputy who had opposed him in the election. The court faced the issue of whether it was clearly established in 1992 that harassing a policymaking employee of the sheriffs department for his political activity during a prior election was unconstitutional. Wallace, 67 F.3d at 663. In a divided opinion, the Seventh Circuit held that it was not. Id. The distinction between dismissing and harassing a policymaking employee “is a subtle one,” the court wrote, and it was not “sufficiently established in June 1992 so as to deprive [Sheriff] Benware of qualified immunity.” Id. Despite this ruling, the court acknowledged that for future cases the principle should be considered established. Id. Specifically, the court held that although a sheriff may discharge such a poli-cymaking employee, he may not harass him, making any harassment of a public employee for political speech or activity a violation of that employee’s First Amendment rights. Id. Relying on this law, the Court finds that the individual defendants do not enjoy qualified immunity for any acts of harassment in retaliation for Warner’s political activity. What remains is a determination of issues common to both the municipal liability claim and the individual liability claims. For Warner to survive summary judgment on these claims, she must have sufficient admissible evidence to create a factual issue about whether any acts were taken against her because of her political activity. If so, she must then offer sufficient admissible evidence to support a jury finding that the actions taken were not so trivial “that a person of ordinary firmness would not be deterred from holding or expressing” those political beliefs. Pieczynski, 875 F.2d at 1333. 3. WARNER’S CLAIMS The alleged harassment directed at Warner included: reassigning her from the information desk, where she had worked for most of her years of service, to the records room, where she had not worked before, to perform mundane clerical tasks; changing her from a daytime shift, which she had always worked, to a night shift; not allowing her to leave the building for a dinner break during the night shift; subjecting her to constant surveillance by Barnett after she returned to the information desk in July 1996; changing her lunch break time again and reducing it from one hour to forty minutes; denying her the opportunity to perform an out-of-town transport of a prisoner, which would have paid overtime; requiring her to ask a man for permission to go to the bathroom, and, finally, delaying a response to her request to transfer her PERF pension to the police pension fund. As of January 1998, however, both Terre Haute matrons were moved into the 1977 Police Pension Fund, and the City began paying contributions to make the transfer retroactive to July of 1996. Each of these actions, with the exception of the handling of the pension request, was taken by a member of the police department. Authority for assigning Warner to a particular shift or duty was vested in the chief and any superior officer to whom he delegated such authority. It is undisputed that Newport himself made the decision to transfer Warner from the information desk to the records room, and the subsequent decision to put her on a night shift. Dooley Dep. at 22, 27. It is further undisputed that she was not allowed to leave the building for a dinner break when she was on the night shift in the records room. Dooley Dep. at 34-35. Dooley explained why Warner was moved to the records room, why the night shift was added, and why she was not allowed to leave for a lunch break. Lieutenant Presnell, who was in charge of the records room, told Newport when he became chief that the records room was approximately thirteen to fourteen months behind in entering reports into a computer. Dooley Dep. at 22-23. At the same time, the department had just hired ten new police officers in November of 1995, who did not attend the police academy until June of 1996. Those officers were assigned to cover the information desk while Warner was transferred to assist with data entry in the records room. Id. at 23, 35. Because she routinely prepared the reports on computer that needed to be entered, it was assumed that Warner was capable of doing the work in records.- Id. Warner did not object to, or complain about, this reassignment at the time it occurred, as she was entitled to do under the Manual of Rules. Instead, she followed the orders given her. When the ten officers went to the police academy, and after Newport discovered he could hire temporary clerical workers to help in the records room, she was transferred back. All of this is consistent with the business necessity explanation given for Warner’s transfer. Warner has offered very little evidence to disprove the defendants’ explanation for the actions taken with respect to her work assignments and schedule. In fact, she has admitted there was a labor shortage at the time. Warner Dep. at 74. The only evidence offered to connect Warner’s transfer to her political activity eight months earlier is the temporal relationship between that activity and when Jenkins and Newport assumed power after the election, plus a handful of hearsay comments about Jenkins wanting revenge. As noted previously, the comments she cites are inadmissible hearsay, and Warner’s testimony about them is not only vague, but it does not contain sufficient facts from which to assess the reliability of the statements. For example, she does not say whether the third person from whom she learned that Jenkins wanted to make her life miserable had been told this by Jenkins. There is no way to tell the number of layers of hearsay through which the comments had passed before they were reported in Warner’s deposition and affidavit. Had she included affidavits from any of thé third parties who allegedly reported to her about Jenkins’ intentions, her ease might be stronger. But she did not. Warner’s testimony about alleged statements she heard that Jenkins made to others cannot serve to prove that those statements were made, or the truth of what was said. That is, by her testimony alone she cannot prove that Jenkins in fact harbored any retaliatory animus against her or any intentions of harassing or directing the harassment of her. Warner has even less e