                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3885
                        ___________________________

                                 Nathan C. McGuire

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

  Independent School District No. 833; Julie A. Bowlin; Thomas M. Bowlin;
Chelon L. Danielson; Joy M. Szondy; Keith Jacobus, in his individual and official
       capacities; Denise Griffith, in her individual and official capacities

                     lllllllllllllllllllll Defendants - Appellees
                                      ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                            Submitted: February 9, 2017
                               Filed: July 24, 2017
                                  ____________

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
                          ____________

KELLY, Circuit Judge.

      From 2012 to 2014, Nathan C. McGuire was the head varsity girls’ basketball
coach at Woodbury High School, a public school within Independent School District
No. 833 (the District) in Woodbury, Minnesota. In March 2014, the South
Washington County School Board (the School Board) decided not to renew
McGuire’s coaching contract for the following school year. McGuire brought suit,
alleging that the District and two of its employees violated his due process rights by
declining to renew his contract solely on the basis of parent complaints. The district
court1 granted a motion for judgment on the pleadings and dismissed McGuire’s due
process claims. We affirm, finding that the 2013 amendment to Minnesota Statue
§ 122A.33 does not grant McGuire a property interest in the renewal of his coaching
contract.

                                   I. Background

        For purposes of this appeal, we accept as true the following factual allegations
which come from the second amended complaint. Ashley Cty. v. Pfizer, Inc., 552
F.3d 659, 665 (8th Cir. 2009). The District hired McGuire in fall 2012 as the varsity
girls’ basketball coach at Woodbury High School. During the 2012–2013 basketball
season, McGuire and the coaching staff decided not to include a student on the team
roster for a tournament because she acted disrespectfully toward a referee. The
student’s mother, defendant Joy Szondy, along with another player’s parent,
defendant Chelon Danielson, complained to the school, claiming the coaching staff
lied about the student’s behavior. The following year, another student’s parents,
defendants Julie and Tom Bowlin, complained to the school and the District because
their daughter was not getting enough playing time on the team. According to the
complaint, the parents demanded that McGuire be removed as head girls’ basketball
coach. The Bowlins’ daughter subsequently transferred to another high school.
Szondy, Danielson, and the Bowlins (collectively, the parent defendants) continued




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

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to seek McGuire’s removal even after their daughters were no longer playing on the
team.2

       On January 8, 2014, the Woodbury High School principal notified McGuire
that he was being placed on paid, non-disciplinary leave pending the outcome of an
investigation into allegations against him, and that he would not be permitted to
perform his coaching duties until further notice. McGuire alleges that he was placed
on leave solely because of the complaints from the parent defendants. The District
retained a law firm to conduct the investigation, and an attorney interviewed players,
coaches, parents, and McGuire. McGuire alleges that the investigation was
conducted to “give the appearance of compliance” with the law. Following the
investigation, the attorney prepared a report and provided it to the District. Despite
his requests, McGuire claims he has not been provided a copy of the report, nor has
he been informed of the allegations against him, the identity of the persons who made
the allegations, or the evidence supporting them.

       On January 31, 2014, the principal notified McGuire that his administrative
leave would continue until his current contract expired on March 22, 2014. At its
March 6, 2014, meeting, the School Board approved the non-renewal of McGuire’s
contract. McGuire received a letter from the principal on March 14, 2014, notifying
him of the decision. The letter stated the decision “is based on the results of a recent
investigation and is not based solely on parent complaints.” It provided several
reasons for non-renewal, including that McGuire “failed to meet the administration’s
expectations;” that the administration “would like the Woodbury Girls’ Basketball
program to move in a different direction;” and that McGuire’s “leadership style,
coaching philosophy, conduct, and coaching methods differ from the leadership style,

      2
        In January 2014, the parent defendants filed complaints against McGuire with
the Minnesota Department of Education alleging maltreatment of their daughters.
The complaint states that after an investigation, McGuire was found not culpable for
the alleged student maltreatment.

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coaching philosophy, conduct, and coaching methods that are desired by the
administration.” Despite the reasons given, the complaint alleges that the District
defendants actually decided not to renew McGuire’s contract based solely on the
existence of parent complaints.

       McGuire requested a hearing before the School Board. The District notified
him that he was not entitled to an evidentiary hearing, but he could address the
members of the School Board at a meeting. On May 8, 2014, McGuire made a
statement before the School Board, explaining that he felt the reasons for non-renewal
were unjustified, unsupported, and based solely on parent complaints. McGuire also
presented 19 statements from players, parents, and coaches, who supported him and
his assertion that parent complaints were the most credible explanation for the non-
renewal of his contract. Over the objection of one Board member, the School Board
did not take any action on McGuire’s contract.

      In December 2014, McGuire brought suit against the District, the
superintendent, the human resources director, and the parent defendants. In the
second amended complaint, McGuire states six claims for relief. The first and second
counts were brought under 42 U.S.C. § 1983 against the District and its employees,
respectively, for violations of McGuire’s procedural due process rights. The
remaining four counts were state statutory and common law claims. The District,
superintendent, and human resources director (collectively, the District defendants)
moved for judgment on the pleadings as to counts one and two, arguing that McGuire
does not have a constitutionally protected property interest in the renewal of his
coaching contract. The district court granted the motion, dismissed counts one and
two with prejudice, and declined to exercise supplemental jurisdiction over the
remaining state law claims. McGuire appeals the district court’s grant of the motion.




                                         -4-
                                   II. Discussion

       McGuire argues that Minnesota Statute § 122A.33 creates a property interest
in the renewal of his contract as the head girls’ basketball coach when the sole basis
for non-renewal was the existence of parent complaints. The determination of
whether there exists a constitutionally protected property interest is an issue of law
we review de novo. Buchanan v. Little Rock Sch. Dist. of Pulaski Cty., 84 F.3d 1035,
1038 (8th Cir. 1996). We also review a grant of a motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) de novo. Montin v. Moore,
846 F.3d 289, 293 (8th Cir. 2017).

      In relevant part, Minnesota Statute § 122A.33 states:

             Subd. 2. Annual contract. Notwithstanding section
             122A.58, a person employed as a head varsity coach has an
             annual contract as a coach that the school board may or
             may not renew as the board sees fit.

             Subd. 3. Notice of nonrenewal; opportunity to respond.
             A school board that declines to renew the coaching
             contract of a licensed or nonlicensed head varsity coach
             must notify the coach within 14 days of that decision. If
             the coach requests reasons for not renewing the coaching
             contract, the board must give the coach its reasons in
             writing within ten days of receiving the request. The
             existence of parent complaints must not be the sole reason
             for a board not to renew a coaching contract. Upon
             request, the board must provide the coach with a
             reasonable opportunity to respond to the reasons at a board
             meeting. The hearing may be opened or closed at the
             election of the coach unless the board closes the meeting
             under section 13D.05, subdivision 2, to discuss private
             data.


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In 2010, the Minnesota Court of Appeals held that an earlier version of this statute
did not give a coach a property interest in the renewal of his or her contract once it
expired. See Christopher v. Windom Area Sch. Bd., 781 N.W.2d 904, 911 (Minn. Ct.
App. 2010) (“Because relator’s coaching job was by annual appointment, consistent
with Minn. Stat. § 122A.33, any property interest that he had in his coaching job
ended when his annual coaching contract ended, and any interest in a future
appointment was a mere expectancy not subject to due process protection.”). In 2013,
following the Christopher decision, the Minnesota legislature added a sentence to
Section 122A.33, Subdivision 3: “The existence of parent complaints must not be the
sole reason for a board not to renew a coaching contract.” 2013 Minn. Sess. Law
Serv. ch. 116, sec. 14, § 122A.33, subd. 3 (West). McGuire argues that the 2013
amendment set forth a substantive limit on the District’s discretion to renew his
contract, giving him a property interest in renewal.

       “To have a constitutionally cognizable property interest in a right or a benefit,
a person must have ‘a legitimate claim of entitlement to it.’” Austell v. Sprenger, 690
F.3d 929, 935 (8th Cir. 2012) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972)). “Property interests are not created by the Constitution, ‘they are created and
their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law . . . .’” Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 538 (1985) (alteration in original) (quoting Roth, 408 U.S. at 577).
But “federal constitutional law determines whether that interest rises to the level of
a legitimate claim of entitlement protected by the Due Process Clause.” Town of
Castle Rock v. Gonzales, 545 U.S. 748, 757 (2005) (emphasis and internal quotations
omitted). “We have held that a state statute . . . can create a constitutionally protected
property interest, first, when it contains particularized substantive standards that
guide a decision maker and, second, when it limits the decision maker’s discretion by
using mandatory language (both requirements are necessary).” Dunham v. Wadley,




                                           -6-
195 F.3d 1007, 1009 (8th Cir. 1999) (citing Jennings v. Lombardi, 70 F.3d 994,
995–96 (8th Cir. 1995)).3

        McGuire argues the 2013 amendment creates a protected property interest
because it sets a substantive standard for the School Board to follow, not a procedural
one. See Dunham, 195 F.3d at 1009 (“Statutes or policies that are only procedural
. . . do not create protected property interests.”). Although the amendment appears
in a procedural subsection of the statute, at least one Minnesota court implicitly
concluded that it creates a substantive standard. See Thiel v. Indep. Sch. Dist. No.
803, No. A16-0753, 2017 WL 74390, at *2–4 (Minn. Ct. App. Jan. 9, 2017)
(unpublished). We need not decide the issue, however, because we conclude that the
2013 amendment does not create a protected property interest because it does not
sufficiently limit the decision maker’s discretion.

      To constitute a protected property interest, the School Board’s discretion must
be limited such that the amendment “mandat[es] the outcome to be reached upon a
finding that the relevant criteria have been met.” Ky. Dep’t of Corr. v. Thompson,
490 U.S. 454, 462 (1989). Where state law gives an employee a “mere subjective
expectancy” of continued employment, a property interest does not arise. Batra v. Bd.
of Regents, 79 F.3d 717, 720 (8th Cir. 1996); accord Snaza v. City of Saint Paul, 548


      3
        The District defendants argue that McGuire’s “Statement of the Issue”
addresses only the second requirement of the property interest test; thus, his
arguments regarding the first requirement in the substance of the brief “are outside
the scope of this appeal.” We reject the District defendants’ overly formalistic
argument, and consider the ultimate question raised in McGuire’s Statement of the
Issue, namely whether “McGuire has a constitutionally protected property interest in
continued employment as a coach?” Cf. Modern Leasing, Inc. of Iowa v. Falcon Mfg.
of Cal., Inc., 888 F.2d 59, 61 (8th Cir. 1989) (rejecting argument that appeal should
be dismissed because it omitted the statement of issues because it is “excessively
technical, goes to a matter that is not jurisdictional, and presents no grounds for
dismissal of the cross-appeal”).

                                         -7-
F.3d 1178, 1182–83 (8th Cir. 2008). In other words, for McGuire to have a legitimate
claim of entitlement to the renewal of his contract, he must show that the 2013
amendment does not leave “considerable discretion” in the hands of the School
Board. McDonald v. City of Saint Paul, 679 F.3d 698, 705 (8th Cir. 2012).

        Here, Subdivision 2 of Minnesota Statute § 122A.33 gives the School Board
unfettered discretion to refuse to renew a coach’s contract. See Minn. Stat. Ann.
§ 122A.33, subd. 2 (“[A] person employed as a head varsity coach has an annual
contract as a coach that the school board may or may not renew as the board sees
fit.”). Assuming it is substantive, the 2013 amendment only prohibited the School
Board from basing its renewal decision solely on “the existence of parent
complaints.” See id., subd. 3. This single limit on the reasons for non-renewal still
“leav[es] the particular substantive outcome in each case to the sound discretion of”
the School Board. Forrester v. Bass, 397 F.3d 1047, 1056 (8th Cir. 2005). Even if
McGuire could establish beyond doubt that the School Board’s decision not to renew
his contract was based solely on the existence of parent complaints, the School Board
could decline to renew his contract anyway, for a different reason, or no reason at all.
Because Section 122A.33 in its entirety leaves the School Board with considerable
discretion to renew a coach’s contract and provided McGuire only with “possibility
that he would be reappointed,” Mulvenon v. Greenwood, 643 F.3d 653, 658 (8th Cir.
2011), no property interest lies. Cf. Stevenson v. Blytheville Sch. Dist. # 5, 800 F.3d
955, 969 (8th Cir. 2015) (“[A]lthough the 2013 Act prohibited nonresident school
districts from considering certain characteristics of an applicant, it still invested the
nonresident school district with the discretion to decide whether to accept a student
seeking transfer,” and thus created no protected property interest in “the possibility
of transfer to another district”); Wallace v. Robinson, 940 F.2d 243, 248 (7th Cir.
1991) (en banc) (holding that a rule that permitted the warden to change a prisoner’s
job assignment for any reason except for misconduct “put restrictions on only one
ground of action,” leaving “the remaining field of discretion . . . so large that no



                                          -8-
prisoner has a legitimate claim of entitlement to a particular job placement, no matter
what the facts may be”).

       Accordingly, because McGuire has not demonstrated that the 2013 amendment
to Minnesota Statute § 122A.33 gives him a protected property interest in the renewal
of his coaching contract, his procedural due process claims necessarily fail.

                                    III. Conclusion

       For the foregoing reasons, we affirm the judgment of the district court.

COLLOTON, Circuit Judge, concurring in the judgment.

        I do not join the court’s reliance on Stevenson v. Blytheville School District # 5,
800 F.3d 955 (8th Cir. 2015), but otherwise agree with the opinion. Even this court’s
broadest recognition of a constitutionally protected property interest in the
employment context, Rogers v. Masem, 788 F.2d 1288 (8th Cir. 1985), involved a
state statute with criteria that “significantly guide[d] decisionmakers’ discretion.” Id.
at 1294. The Minnesota statute at issue here does not significantly guide or constrain
the school board’s discretion. Indeed, although a school board is forbidden to decline
renewal of a coaching contract based solely on the existence of parental complaints,
it may act based on the substance of those complaints, Thiel v. Indep. Sch. Dist. No.
803, No. A16-0753, 2017 WL 74390, at *4 (Minn. Ct. App. Jan. 9, 2017), or for any
other reason. State law therefore does not grant Mr. McGuire a constitutionally
protected property interest in continued employment.
                              _________________________




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