The opinion of the court was delivered by: Ity O'neill, J.
Plaintiff Marie Cange filed a complaint against her former employer, defendant Philadelphia Parking Authority, alleging discrimination based on her national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d and 2000e, the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071 (Nov. 21, 1991), and the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951 et seq. After the trial, the jury could not reach a unanimous decision on all the questions on the verdict form. Defendant has moved for judgment as a matter of law pursuant to Rule 50. Plaintiff has moved for a mistrial and requests a new trial only on those questions that the jury did not answer unanimously. I have before me defendant's memorandum of law in support of its motion for judgment as a matter of law, plaintiff's response and defendant's reply. Oral argument was held on March 26, 2010.
The trial lasted four days. At the close of plaintiff's case in chief, defendant moved for judgment as a matter of law pursuant to Rule 50(a) and I reserved ruling on that motion. After the close of all the evidence, defendant renewed its motion for judgment as a matter of law pursuant to Rule 50(b) and I again reserved my ruling on that motion. Defendant also objected to the instruction of the jury on the issue of mixed-motive and I overruled the objection. The jury was charged on both mixed-motive and pretext and began deliberations on Friday, February 19, 2010. After several hours of deliberation on Friday, the jury informed me that it had unanimously found that plaintiff had not proved by a preponderance of the evidence that her national origin was a determinative factor in defendant's decision to terminate her, i.e. the pretext question. However, the jury was at an impasse as to whether plaintiff had proved by a preponderance of the evidence that her national origin was a motivating factor in defendant's decision to terminate her, i.e. the mixed-motive question. I instructed the jury to continue its deliberations through the end of the day Friday and to return on Monday. After further deliberations on Monday, the jury informed me again that they were at an impasse. The parties did not agree that the jury could return a non-unanimous verdict on any of the remaining questions. I took the jury's verdict on the question on which it was able to reach a unanimous verdict and then discharged the jury. Thereafter, plaintiff moved for a mistrial and for a new trial to be held only on those questions that the jury did not answer.
A. Motion for Judgment as a Matter of Law
Rule 50(b) of the Federal Rules of Civil Procedure governs the Court's ability to grant judgment as a matter of law after a jury trial. It is a sparingly invoked remedy and is appropriate only where "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed. 2d 105 (2000). In determining whether such a legally sufficient evidentiary basis exists, the Court must review all the evidence in the record and draw all reasonable inferences in favor of the non-moving party. Id. at 150.
The Court may not, however, make credibility determinations or weigh the evidence--those functions are reserved for the jury. Id. In sum, a motion for judgment as a matter of law "should be granted only if, viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993); see also Reeves, 530 U.S. at 148-49 (finding that "an employer would be entitled to judgment as a matter of law... if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.") The same standard applies when a jury is deadlocked. See Noonan v. Midland Capital Corp., 453 F.2d 459, 463 (2d Cir. 1972); Kerman v. City of New York, 261 F.3d 229 (2d Cir. 2001).
B. Motion for a New Trial
Rule 59 governs the Court's ability to grant a new trial. The rule allows the Court to grant a new trial after a jury trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court...." Fed. R. Civ. P. 59(a)(1)(A). Where a new trial is sought because the jury could not reach a unanimous verdict on all of the questions, the Court may either declare the entire case a mistrial and order the case reheard in its entirety with a different jury, Franki Found. Co. v. Alger-Rau & Assoc., Inc., 513 F.2d 581, 585 (3d Cir. 1975), or "order a partial retrial only as to those issues which were not unanimously agreed upon by the jury." Baxter Healthcare Corp. v. Spectramed, Inc., 49 F.3d 1575, 1581 (Fed. Cir. 1995) (citing James W. Moore et al., Moore's Federal Practice ¶ 49.37 (2d ed. 1993)).
The Court of Appeals has held that a Title VII plaintiff may state a claim for national origin discrimination under either the pretext theory set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973), or the mixed-motive theory first set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed. 2d 268 (1989), "under which a plaintiff may show that an employment decision was made based on both legitimate and illegitimate reasons." Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008). The Civil Rights Act of 1991 articulates the applicable standards in a mixed-motive case. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 94, 123 S.Ct. 2148, 156 L.Ed. 2d 84 (2003) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 251, 114 S.Ct. 1483, 128 L.Ed. 2d 229 (1994)) (noting that "§ 107 of the 1991 Act... 'responded' to Price Waterhouse by 'setting forth standards applicable in mixed motive cases in two new statutory provisions.'"). Thus, a plaintiff may establish an unlawful employment practice by demonstrating "that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m).*fn1
A. Knowledge of Plaintiff's National Origin
In order for a plaintiff's national origin to have been a motivating factor in the defendant's decision to terminate her, it logically follows that the defendant must know the plaintiff's national origin. Geraci v. Moody-Tottrup, Intern., Inc., 82 F.3d 578, 581 (3d Cir. 1996) ("it is counter-intuitive to infer that the employer discriminated on the basis of a condition of which it was wholly ...