concurring in part and dissenting in part.
I agree fully with the Court’s opinion with one exception. I am not persuaded *436that we can properly affirm the District Court’s decision to deny reinstatement on the present state of this record. I believe there should be a remand for more precise findings on that issue.
As the Court says, ante at 4, the District Court denied reinstatement because of the “animosity between the parties and the likelihood that they could not work together in peace.” McIntosh v. Jones Truck Lines, Inc., No. LR-C-83-55, slip op. 18 (E.D.Ark. April 9, 1984). The record amply supports a finding of animosity. But that alone cannot bar reinstatement in a Title VII case. Otherwise, an employer who has violated the law could always avoid reinstatement by making the job sufficiently uncomfortable for a successful plaintiff. We have explicitly ruled on this precise point.
In a Title VII action ... a court may deny reinstatement only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. To deny reinstatement to a victim of discrimination merely because of the hostility engendered by the prosecution of a discrimination suit would frustrate the make-whole purpose of Title VII. Antagonism between parties occurs as the natural by-product of any litigation. Thus, a court might deny reinstatement in virtually every case if it considered the hostility engendered from litigation as a bar to relief.
Taylor v. Teletype, Corp., 648 F.2d 1129, 1138-39 (8th Cir.) (citations omitted), cert. denied, 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981).
The real question is, whose fault was the animosity that arose in the work place? Was it McIntosh’s fault, for becoming unjustifiably angry over not being given unlimited sick leave? Or was it Jones’s fault for illegally retaliating against McIntosh for filing a charge before the Equal Employment Opportunity Commission? The District Court’s detailed findings leave this question open.
McIntosh was a good employee with no workplace problems worth remarking on until the sick-pay incident occurred. The District Court described what happened next in these words:
The Court concludes that after Mr. McIntosh filed the EEOC charge on October 30, 1981, Rick Johnson [the manager of the branch at which McIntosh worked] deliberately and systematically set out to build a case with a supporting file which would support McIntosh's termination. By the same token, the Court concludes that Mr. McIntosh’s unfounded belief that he was given a “raw deal” over the sick pay issue, and his reaction to Johnson’s retaliatory treatment, caused him to become a disruptive, belligerent and irresponsible employee.
McIntosh v. Jones Truck Lines, Inc., No. LR-C-83-55, slip op. 6-7 (E.D.Ark. April 9, 1984).
This description, which is amply supported by the record, admittedly reflects no great credit on the plaintiff. The District Court clearly found, however, that his behavior was the result of two causes: his unjustified claim for unlimited sick pay, and the illegal retaliatory treatment inflicted upon him by Johnson. A more refined finding needs to be made before we can be sure whether McIntosh is entitled to reinstatement. Assuming that the animosity between him and Johnson had its roots in both these causes, what would the level of animosity have been if only the first cause, the one attributable to McIntosh’s own fault, had been present? Or, to put it another way, if Johnson had not retaliated unfairly against McIntosh, provoking most justly a degree of moral indignation in the plaintiff, would the bad feelings nevertheless generated by McIntosh’s protest on the sick-pay issue have risen to a level sufficient to justify the denial of reinstatement? The District Court has not answered this question, and we are in no position to answer it. I would therefore remand for a further finding on the issue of reinstate*437ment, and would ask the District Court, in making that finding, to take into account the fact that Rick Johnson, the manager whose conduct violated the law, and the person against whom McIntosh seems to have become most incensed, is no longer branch manager at this particular location. He is still with Jones, or was still with it when the District Court’s opinion was written, and he would have some contact with McIntosh, but his contact on a day-to-day basis would not be nearly so frequent as it was when the incidents of disagreement between him and McIntosh occurred.
At common law, personal-services contracts, including contracts of employment, were not specifically enforceable. An employee could quit, even in breach of contract, and no court would force him to come back to work at the suit of the employer. An employer could fire someone, even in breach of contract, and the employee could not get a court to force the employer to restore his job. Title VII effected a revolutionary change in this state of legal affairs. Under this statute, reinstatement is the normal consequence of an illegal discharge, assuming the employee still wants the job back, which McIntosh does. I believe he is entitled to reinstatement unless the animosity occasioned by his unjustified resentment against the defendant’s sick-leave policy was sufficient, without regard to the hostility created by plaintiff’s claims of discrimination, to justify failing to reinstate him. In addition, the defendant should have the burden of persuasion on this issue. It is a proven wrongdoer, and the risk of failing to persuade the trier of fact on the question of remedy should rest upon it.
For these reasons, I respectfully dissent in part.