concurring in part and dissenting in part.
I concur in the result reached in this case because I believe there are disputed material questions of fact which preclude a summary judgment on the question of disability.1
I dissent from section III.A.1. which addresses the issue of “mitigating measures.” In my view, the impact of mitigating measures must be decided on a case-by-ease basis. In some cases a person with a “controlled” medical problem or condition will be completely functional and should be evaluated as such. In other cases a person with a controlled medical condition may still be under a disability as defined by the Act. Indeed, what is necessary to “control” the condition may be part of what makes the person disabled.
I also concur in that part of Judge Kennedy’s opinion which states:
As a result, I believe that the ADA’s definition of disability “Cannot" bear the interpretation adopted by” the EEOC in 29 C.F.R. § 1630 App. 1630.2(j), Sullivan v. Everhart, 494 U.S. 83, 92, 110 S.Ct. 960, 966, 108 L.Ed.2d 72 (1990), and, therefore, that this Court should not give effect to the EEOC’s interpretative rule. See Public Employees Retirement Sys. v. Betts, 492 U.S. 158, 171, 109 S.Ct. 2854, 2863, 106 L.Ed.2d 134 (1989) (“[O]f course, no deference is due to agency interpretations at odds with the plain language of the statute itself.”).
. The issue of whether Gilday is a "qualified person” was not addressed by the district court, and I express no opinion on that issue.