dissenting.
This case raises five questions, all matters of fairness and due process, impinging on the integrity of the MSPB role in employment matters.
1. After Mr. Guirguess and the Postal Service had agreed on settlement and transfer, Guirguess’ counsel had sent the administrative judge, in error, a copy of a five-year-old agreement relating to a different case. Guirguess wrote the administrate judge with a correct copy, wrote that in the written agreement the Postal Service had changed the transfer location from that which had been orally agreed, and asked the administrative judge for time to obtain new counsel. The AJ did not respond, and nine days later issued a decision affirming Mr. Guirguess’ removal. This ended the settlement. That cannot be the “fairness” intended for the MSPB role.
2. There is also an important question of binding oral settlement, as required by this court’s recent decision in Tiburzi v. Dept. of Justice, 269 F.3d 1346 (Fed.Cir. 2001).
3. The record is not as one-sided and inflammatory as recited by the majority. Although Mr. Guirguess was quite short on self-control, despite the hazards of im*564proper asbestos removal procedures, the AJ’s decision to sustain Guirguess’s firing was not based on his agitated over-reaction, but on “assault.” However, the elements of assault were neither charged nor found. The removal was for improper conduct. MSPB procedures, as well as due process, require precision of the charge, so that it can be defended.
4. The Board in its standard form letter denying review for lack of new evidence, simply ignored the proffered new evidence that negated any intent to assault. Thus the review contemplated in the MSPB was not achieved, as the Board let stand the AJ’s decision on a ground that was neither charged nor supported.
5. The Douglas factors require consideration of whether the offense was intentional, as well as the employee’s general performance record. When these aspects are fairly considered, the Board’s decision requires redetermination.
1.
After settlement had been agreed, the Postal Service presented Mr. Guirguess with a written settlement, but with a different transfer location (Kilmer) than had been orally agreed (Monmouth). After Mr. Guirguess’s lawyer sent the AJ a copy of the wrong document, Mr. Guirguess sent the correct one and voiced his frustration with the altered term. Specifically, Mr. Guirguess told the AJ that the Postal Service had changed the transfer location. Guirguess asked the AJ for “indulgence” for time to obtain a new attorney to resolve the discrepancy. The administrative judge released his adverse decision nine days later.
The panel majority states that the AJ was correct in ignoring Guirguess’s request because it came after the settlement offer had “expired.” The Postal Service’s documents state no expiration date. Perhaps the majority is referring to Guirguess’ attorney’s réquest to the AJ to give Guirguess until February 4 for “receipt of the settlement,” the attorney meanwhile leaving the country. The record shows no notice to Guirguess of any deadline, no response from the AJ, no deadline from the Postal Service, no notice irom the AJ that time would run out, and no response to Guirguess’ request for time to find a new attorney.
Mr. Guirguess’ request for time to locate new counsel is not a trivial matter. The AJ’s silence upon Guirguess’ request, followed by an adverse decision that sabotaged settlement, is unconscionable. The issuance of the decision sealed Guirguess’ firing, although the AJ was told of the settlement and Mr. Guirguess had sent the AJ a copy of a complete agreement, citing the changed transfer location, and asking for time to locate new counsel. This hasty and fundamentally prejudicial action had far-reaching consequences, inconsistent with the fairness that is intended for MSPB procedures.
2.
This case is now governed by Tiburzi v. Dep’t of Justice, 269 F.3d 1346 (Fed.Cir. 2001). Although I dissented from that decision, it is the law of this court. It is not dictum. Tiburzi did not turn on whether the “oral” terms were memorialized on the hearing record, as the panel majority proposes. The oral agreement in Tiburzi was held binding, although both sides explicitly stated that it would be reduced to writing and signed, and the agency changed the terms in reducing the agreement to writing. That is what happened here.
The Postal Service’s pre-hearing conference memorandum summarizes the discussion before settlement was reached. *565Agreement to settle, with transfer to another location, was reached on the day of the hearing, but the written agreement stated a different location from that which Guirguess says was agreed. Although the panel majority points out that the parties labeled their correspondence “proposed settlement,” the correspondence in Tiburzi was also so described.
The only question is whether there was in fact a complete agreement as Tiburzi characterizes completeness, for if there was then the settlement was completed before Administrative Judge Fishman’s decision. With his letter requesting time to obtain a new lawyer, Mr. Guirguess informed the administrative judge that the transfer location had been changed in the written agreement, a change to which he objected. However, in view of the virtual identity of facts to those of Tiburzi — an oral settlement, after which the agency changed a term in the written agreement — Tiburzi requires that both parties are bound to the oral settlement.
At a minimum, this case should be remanded for consideration in view of Tiburzi which was decided after these events.
3.
Mr. Guirguess was found by the administrative judge to have committed an “assault.” This was the ground on which his removal was affirmed. The AJ’s decision was not based on Mr. Guirguess’ agitated response to the improper asbestos removal, but on intentional injury to Mr. Isnardi’s finger. However, the AJ failed to find or infer intent.
Mr. Guirguess, a supervisor, was summoned by his employees concerned with exposure to asbestos. Upon arriving, he saw Mr. Isnardi chipping at the floor tiles with a hammer and chisel. Mr. Isnardi was surrounded by small yellow barriers and was wearing a protective mask. The employees were “standing around,” refusing to work for fear of “unsafe conditions” from airborne asbestos released by Mr. Isnardi. Faced with employees unwilling to work in an environment that is a well-publicized health risk, Guirguess told Isnardi to stop. Isnardi directed Guirguess to his supervisor, William Gienz. There followed a telephone conversation, reported to be long and loud, which failed to resolve the issue when Gienz hung up on Guirguess.
I am surprised at the panel majority’s repeated references to the chipping as an approved procedure. Whether Isnardi had permission to perform the task is irrelevant to the perceived dangers of chipping at asbestos in an open area in which people are working, or to a supervisor’s responsibility to protect the workplace. There was no evidence that Gienz or Isnardi acted to allay Mr. Guirguess’ safety concerns at the time of the incident. Despite the panel majority’s contrary finding, Mr. Gienz did not “assure” Mr. Guirguess that open air chipping of asbestos with hammer and chisel, while others worked or watched, was a safe and acceptable asbestos practice. Mr. Gienz, in a written statement made after the incident, explained to the agency that chipping was okay because it “did not involve drilling or any other method by which asbestos fibers could be released into the air.” Gienz did not say that he provided this assurance to Guirguess at the time, nor does the record state that anyone else provided such assurance. Nor does the record state that asbestos chipping in a populated area is an approved and safe procedure; indeed, it is inconceivable that it would be.
Apparently my colleagues on this panel believe that Mr. Guirguess should have allowed the chipping to continue after the supervisor refused to halt the work. In*566deed, had he done so, he might not have lost his job. It is undisputed that Guirguess agitatedly kicked Isnardi’s tools away from the work site, kicked or threw the yellow signs that Isnardi had placed on the floor, and in the course of this tirade stepped on Isnardi’s finger. Isnardi went to a hospital, where he was diagnosed with a “contusion” to his right fifth digit. His fourth and fifth fingers were taped together and he left two hours after the incident. Thus I marvel at the majority’s reference to “amputation concern.” No doctor so testified, and the medical report in the record refers only to the contusion to the pinky. Although the government adduced Isnardi’s testimony that he was diabetic and that broken bones do not always heal properly for diabetics, it was clear that this was irrelevant.
The administrative judge found that Mr. Guirguess had committed an “assault,” an act that requires intent to injure. However, no finding of intent was made. The majority concludes that the AJ inferred the intent to injure. However, the use of the legal term “assault” does not silently create a finding of intent.
An inference of intent must have some evidentiary support. The only evidence was that the accused action was not deliberate. Isnardi testified that after Guirguess kicked the tools, “[h]is foot came back down, [and] it landed on my two fingers on my right hand.” Isnardi testified that he had to tell Guirguess that his foot was on his hand. It is not a dignified picture. However, it does not show an intent to injure Isnardi. And Gienz, to whom the panel majority points for “collaboration” of Isnardi’s testimony, provided no evidence of intent to injure. Gienz was not there, and he wrote in his post-accident report only that Isnardi’s hand had been stepped on. Mr. Isnardi, the only Agency witness present at the incident, subsequently averred that the act was not intentional.
The absence of intent is highlighted by Isnardi’s affidavit. After the administrative judge based his decision on assault, Isnardi averred that the incident was accidental. Isnardi stated: “It is my position now and it has always been my position that Petitioner, Waguih Guirguess, did not intentionally or maliciously injure my right 5th finger on June 3, 1999.” Isnardi explains in the affidavit that he so stated to both attorneys and the administrative judge. Indeed, there was no contrary evidence. “Assault” requires a deliberate act, an intent — not agitated movement, however irrational.
The AJ’s conclusion of assault surely is not supported by substantial evidence, for it is not supported by any evidence at all.
4.
After the administrative judge’s finding of an “unprovoked assault,” the union investigator, Joseph Pepe, wrote a letter to the full Board, submitted with Guirguess’ appeal from the AJ’s decision. Pepe wrote that “Mr. Isnardi told me that he knew that George [Guirguess] did not intentionally injure him.” The Board, by form letter, dismissed the appeal for lack of “new evidence.” However, this was indeed new evidence, the only evidence on the ground on which the AJ based his decision.
The panel majority states that Guirguess should have presented these exculpatory statements at the hearing. However, the charge of “assault” was not at issue at the hearing; the Postal Service’s removal action for “improper conduct” was based on Guirguess’ “physical and verbal alterca*567tion” with Isnardi. The term “assault” and its essential predicate of intent was not an issue at the hearing.
Indeed, Mr. Pepe’s investigative report negated a charge of intent to injure. It is not irrelevant that Guirguess could not have presented Pepe’s report at the hearing, because it was withheld by the Postal Service and his two attempts to obtain the report were unsuccessful.
The evidence of intent became critical only after the AJ’s decision. After the AJ based his decision on a ground that was not at issue, the Board had the obligation to consider the evidence, or at least to remand to an AJ to assure its consideration. The perfunctory issuance of a form statement that there was no new evidence was improper, and requires correction on this appeal, lest this court’s appellate responsibility become equally perfunctory.
5.
Application of the factors established in Douglas v. Veterans Administration, 5 MSPB 813, 5 M.S.P.R. 280 (1981) requires analysis of “[t]he nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.” 5 MSPB 313, 5 M.S.P.R. at 305. Whether the offense was intentional is a highly relevant Douglas consideration. The Postal Service does not dispute Mr. Guirguess’ twenty-plus years of exemplary service, his record of evaluations as a superior employee, his promotions, and his successful performance of increasing responsibilities. While the record shows an unusually agitated reaction to the improper release of asbestos into the air, the remedy must be considered in light of the provocation. Indeed, were Mr. Guirguess’s behavior so heinous, the Postal Service’s agreement to a settlement that retained Mr. Guirguess in employment cannot be understood.
For these reasons, I dissent.